Two hemispheres of law practice

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

Flickr/CC by SA-2.0
Flickr/CC by SA-2.0

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

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

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

First-hemisphere listening

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

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

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

Second-hemisphere listening

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

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

Why do these hemispheres exist?

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

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

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

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

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

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

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

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

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

What does this mean for law schools?

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

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

Teaching Success > Analyzing Failure

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

Courtesy Flickr/Martin Fisch/CC BY-SA 2.0
Courtesy Flickr/Martin Fisch/CC BY-SA 2.0

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

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

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

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

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

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

Prevention is better than failure

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

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

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

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

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

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

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

Problem-solving and leadership

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

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

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

Better listening by analyzing listening successes

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

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

Core professional qualities of lawyers

About a thousand law professors are gathering now at the Annual Meeting of the American Association of Law Schools. The first session I attended this morning was Incorporating Teaching Professional Identity into the Legal Education Curriculum, with speakers from Mercer Law School and the University of North Dakota School of Law. Both schools offer innovative courses in building a professional identity as a lawyer.

The new program on professional identity at North Dakota emphasizes twelve core professional qualities, which I quote here from their handout:

  • Adaptability/Deals with Unpredictability
  • Confronts Mistakes
  • Courage
  • Diligence/Reliability
  • Empathy/Compassion
  • Generosity/Public-Mindedness
  • Honesty
  • Humility/Respectfulness/Courtesy
  • Integrity Under Pressure
  • Loyalty
  • Patience/Perseverance/Resilience
  • Professional Objectivity/Sympathetic Detachment

I really love this list and wanted to focus the rest of this post on how listening relates to these core qualities. Interestingly, the list does not include anything about “communicates effectively.” I think the point is to talk about the essential character of the lawyer, which is separate and broader than the lawyer’s discrete skills like communicating effectively. The lawyer’s core qualities are broader and more significant than any one skill; they drive the lawyer’s individual actions and deployment of skills in many ways.

Here are my quick thoughts on highlights of the list in relation to listening.

Adaptability and Dealing with Unpredictability

To be able to adapt, the lawyer has to listen. This is easier at the beginning of a project, when the lawyer is beginning to create the narrative of the case or the strategic approach. It’s harder when the client and/or lawyer already have a narrative or strategy in mind. The best lawyers can hear explicit or implicit dissonance with their chosen narrative, and then assess the risk to that narrative.

Listening also helps with unpredictability, I think in the sense of asking questions and listening to the answer. Open-ended questions may tease out that unpredictability and let a lawyer prepare for it. Closed questions that lead the conversation in a certain way may mask unpredictable facts or preferences, setting up nasty surprises later.

Courage

Lawyers have to deal with very difficult facts sometimes. The setting may be a courtroom where a witness recounts painful testimony or a law office where a client shares an uncomfortable truth or a mediation room where harsh words are exchanged or an icy test of wills becomes apparent. The lawyer has to have courage to face these situations and listen with professional body language and a problem-solving demeanor, even if that lawyer’s personal preference would be to go anywhere else in the world.

Diligence

To do a thorough job, the lawyer has to set up sufficient time for fact-investigation including, possibly, interviews. And the lawyer should use judgment to decide how to go about collecting facts, whether by e-mail or phone or face-to-face meetings.

Empathy/Compassion

Listening like a vacuum cleaner sucking up information is not, by itself, effective listening. The listener may be primarily interested in fact investigation and analysis, but listening with empathy will almost always be more professional (as a value) as well as more effective (as a skill).

Generosity

Giving time to listen is a form of generosity. Giving undivided attention during that time is more difficult and therefore more generous.

Humility/Respectfulness/Courtesy

Effective listening is all of these things. We’ve all witnessed situations with a bad listener who interrupts to ensure everyone gets the benefit of his or her “wisdom.” Interrupting is a little more complicated than that, though, because some forms of interruption show engagement with the conversation. Effective listening, like professional identity more broadly as discussed in this session, is complex and holistic and cannot be wholly addressed by a set of steps or distinct, invariable behavior rules.

Patience

At times, listening is hard. That’s partly because people speak more slowly than our brains want to process information. (A whole separate blog post or posts will cover this idea later. It’s a huge component of why really effective listening can be so hard.) Effective listeners may need to show explicit signs of patience, such as body language and encouraging responses. Effective listeners may also need to struggle with their own intrinsic impatience due to the differential between how fast they hear the information and how fast they are capable of processing information.

Perseverance

Many people have mentioned to me that the best listeners are able to hear what’s not said. That’s partly an intellectual skill. But perseverance helps–asking questions in different ways, listening with discernment to how a person says something, and defining the gap. That’s just one specific point where perseverance and listening intersect. Being able to withstand a 4-hour conference call is another form of perseverance.

Professional Objectivity and Sympathetic Detachment

Effective listening means limiting the influence of one’s preferences and biases. It means being empathetic while not becoming so wrapped up in the narrative that one’s objectivity is compromised. The lawyer’s role is a complex and difficult one, and the seeming paradox of “sympathetic detachment” is just one illustration of the fine line lawyers must walk.

Please feel free to use the comments for sharing more thoughts on listening and how it relates to the core qualities of lawyering.


Thanks again to Professors Patti Alleva and Michael McGinniss of the University of North Dakota and Professors Tim Floyd and Patrick Longan, and Dean Daisy Hurst Floyd of Mercer. I probably won’t be able to blog in this depth again during the conference but will try to at least tweet further thoughts of interest on listening. Listen Like a Lawyer’s Twitter feed can be seen here on the blog on the right-hand panel.

Yes, I’m listening to Serial. Aren’t you?

The podcast Serial has, in the past few months, become the most popular podcast ever. As a dedicated bibliophile and not much of an audiobook fan, I’ve been surprised to become so engrossed. Serial reinvestigates the murder of Hae Min Lee, a high-school student from Baltimore who was killed in 1999. Her ex-boyfriend, Adnan Syed, was convicted and remains in prison. Serial raises a lot of questions about criminal justice, the legal system, and lawyering—and it manages to raise them in an interesting, suspenseful way. Listening is intertwined with these issues in a variety of ways, from our own experience as listeners to the vexed role of listening in the investigation and beyond.

Lawyer as listener

Lawyers are used to be the “tellers” in storytellers. As we listen to Serial, we experience a story as the audience. Producer Sarah Koenig controls the pace of the narrative both “week by week” and moment by moment. What immediately struck me—in a good way—was her use of pauses. She speaks quickly but in comprehensible segments, leaving space for understanding. She also uses the voices of others so well. Of course, one would expect nothing less from any affiliate of This American Life. Yet Serial brings a fresh appreciation for the interplay of voices and pauses delivered up for the listener’s ear. Just as one concrete benefit to spending your time with Serial: if you have a CLE presentation to prepare, it might inspire you to use a short video segment, or to experiment a little more with pauses and conversational suspense the way Koenig does.

It’s also interesting that each episode of Serial differs in length. Koenig doesn’t try to space out the narrative to fill a set length of time; she breaks off one coherent piece of the story, fleshes it out, and stops. An episode may be 28 minutes long, or it may be 53. The flexibility of the podcast format is extra courteous to the listeners: we can listen whenever and wherever we want, and we know that an episode is just exactly as long as the producer thinks it should be, no more. The fact it’s free doesn’t hurt either. (In episode 9 she asks for listener contributions, and to date enough has been gathered to support a second season.)

One more note on the listening experience, and this is a little more critical: Serial is in part a work of entertainment, and as such, it has own music. At first, the signature jaunty opening piano left me confused. The music also includes some looming, menacing moments, as well as plaintive notes associates with Hae, the victim. But when we later think of Serial and its phenomenal podcast success, I think we’re going to think of the jaunty piano. As Slate asked, “What the heck is Serial: A mystery? A comedy? A touching memorial?” I can understand why her family may be in pain to have her murder brought back into the public’s view—and the public’s ear—in this way.

Listening in the criminal-justice system

Then there is Serial‘s substantive coverage of how listening happens in the legal system. The listening comes in the form of information gathering, but also information-confirming, and the line between them is not always clear.

We hear several segments of taped interviews with a key witness—indeed, the state’s star witness—talking to Detectives Ritz and MacGillivary. One detective would ask a question that leads the witness to answer and perhaps ramble, at which point the other would follow up with pointed clarification, as Koenig points out. Perhaps it’s surprising that we hear any tactics at all in these interviews. Before taping, the witness and detectives spent three hours “ironing out” this witness’s statement, which was the standard practice back in 1999 and has since been discredited. As producer Sarah Koenig points out this untaped “pre-interview” is “where the mischief can happen, the contamination.” She’s quoting Jim Trainum, a former homicide detective and now consultant to police forces, innocence projects, and others (such as famous podcasts) on issues of interrogation techniques and false confessions. Serial hired Trainum as a consultant for the series.

In prosecution of Syed, the star witness had the virtue of providing valuable information the detectives hadn’t been able to get anywhere else. That witness also provided closure, “a satisfying investigative circle, a murder case on a silver platter,” Koenig points out. When detectives hear possibly conflicting details, they don’t push. The reason they don’t push are both explicit and much more subtle. In terms of obvious strategy, as Trainum states, “You don’t want to do something if it’s going to go against your theory of the case.” No confession is perfect; there will always be some inconsistencies. Those inconsistencies are handled very, very carefully because police don’t want to create “bad evidence.” Producer Koenig literally sputters when Trainum tells her the purpose of the interrogation is not so much to get to the truth as it is to make the case.

Compounding the conscious intent to make the case is the subconscious effect of verification bias. (Listen Like a Lawyer has previously posted on various cognitive biases including confirmation/verification bias.)

To illustrate verification bias, Trainum recreates the mental dialogue of a detective taking a statement, when that detective hears something that doesn’t quite fit: ”I want to believe you because you’re my witness and I think this is what happened and all that, so the fact that you’re giving me something that’s inconsistent and doesn’t fit my theory of the case, what does verification bias cause you [sic] to do? Ignore it and push it aside.”

By the time the detectives interview defendant Syed, as chronicled in episode 9, they have moved from information-gathering to what looks like information-confirming: they open his interview with a “theme.” One of the detectives introduced himself to Syed by suggesting that the detective himself had an ex-wife and could understand how “this” could happen. Serial doesn’t suggest that listening must always be open-ended and can never arrive at a central narrative. That would be naive. But Koenig is certainly suggesting the narrative that convicted Syed is problematic. In essence, Serial is listening to Syed’s story as of today, as it has developed post-conviction, in a way that the court system may or may not do. His petition for post-conviction relief is pending.

Serial has finished its ninth episode and has a handful more to go. For lawyers who have not yet picked up on it, I do recommend it. For those who are already listening to Serial, please share your thoughts. How has the listening experience affected you? What do you think it shows about listening within the legal system?