Category: Gender

‘Nanette’ is good

Jennifer RomigLeave a comment

What’s the difference between a joke and a story? Hannah Gadsby teaches the difference in her new stand-up special Nanette. She brings up a lot of stuff going on in current political discussions in a funny, painful, compelling performance. You will get more out of it by listening not just to the “content” she’s written and delivered—and believe it or not, she has a funny joke early on about the idea of “content” itself. You’ve also got to watch Gadsby’s non-verbal signals, the wry smiles and fleeting, then burning, eye contact as she builds to her point.

One theme running through the show is Gadsby’s stated intent to leave stand-up comedy. She unrolls the reasoning a bit at a time, moving toward her central thesis: she’s got to tell her story, and comedy doesn’t let her do that.

Why not?

What better way to tell one’s story than with humor—specifically, with jokes? They make people laugh; they make people think.

Self-deprecating jokes are causing more hurt and Gadsby states her intent not to use them anymore:

“You do understand what self -deprecation means from somebody who already exists in the margins? It’s not humility. It’s humiliation.”

That’s one of many lessons about listening tucked up in her performance. If you hear someone using self-deprecating humor, listen more closely. Listen with empathy. Why are they doing that?

But beyond the content of the joke, Gadsby says, it’s the joke itself that is the problem. A joke has a two-part structure: First, the tension. Then, the punch line that relieves tension.

That structure is missing the third part, the rest of the story. Sometimes the rest of the story is satisfying, like when she came out to her mother (producing much joke material) and later developed a great relationship with her (happy but not at all funny). And sometimes the rest of the story is really painful, such that a comedian must ignore and suppress it to get anything joke-worthy at all.

So listening for more than a joke is one thing to take away from Nanette. Listening for a joke is a way to squeeze pleasure for yourself as a listener. Some audience members seem to get even more pleasure out of judging the jokes and offering “feedback” and “opinions” to Gadsby after her shows.

But listening for a story uses your listening to help the other person share and connect. How exactly to show you, as a listener, want the story not the joke seems like it must be drawn from intuition and empathy. If your listening skills suggest that all you want or all you can handle is a joke, you’ll never get the full story.

Asking questions certainly seems like a good start. Gadsby talks a lot about the unsolicited feedback she receives, but nowhere in the performance does she recount anyone asking her a question. In a way, the whole performance constitutes an exclamation by someone who has never been asked an open question, but only placed without her consent into certain boxes and stereotypes.

I’m still processing everything I took away from Nanette, and now I get it why someone said they were going to watch the show several more times. It’s not a spoiler to share the denouement, a clip of Gadsby on a sofa with her teapot and teacup and two dogs. After the work that went into Nanette, she deserves a moment to recharge.

Here are some other reviews of Nanette that may be of interest:

https://www.npr.org/sections/monkeysee/2018/07/02/625298708/hannah-gadsbys-nanette-is-a-scorching-piece-on-comedy-and-trauma

Hannah Gadsby on the Real ‘Nanette’ and Whether She’s Really Quitting Comedy After Her Netflix Special

https://www.vox.com/culture/2018/7/5/17527478/hannah-gadsby-nanette-comedy

 

 

 

 

 

 

 

 

 

 

Beyond formal rules of evidence

Jennifer RomigLeave a comment

Last year the Wall Street Journal wrote about problems with sleeping jurors. Brooklyn law professor I. Bennett Capers’ new article Evidence Without Rules, forthcoming in the Notre Dame Law Review, points out a much more pervasive issue: all the information jurors take in when they are awake.

The rules of evidence strictly limit what jurors can consider. They are have been “understood, and continue to be understood, as all-seeing, all-encompassing gatekeepers, checking all of the information juries may hear or see for relevance and trustworthiness.” Capers shows this view to be inaccurate and incomplete:

The assumption is that the rules are all-encompassing, unbounded. But the truth is far different. To be sure, the Rules of Evidence place limits on some of the information jurors hear and see, such as witness testimony and exhibits, the type of information that is formally announced and introduced as evidence by lawyers. Other evidence, however, passes by evidentiary gatekeepers practically unseen and unnoticed. Jurors use it to decide who was right and who was wrong; who committed a crime and who did not.

It is this other evidence that “breeze[s] unchecked” past the gatekeeping function of the evidentiary rules. And, Capers argues, “[i]f the goal of evidence law is ‘that truth may be ascertained and proceedings justly determined,’ then that objective is frustrated when outputs turn on improper and unchecked inputs.”

He gives three major examples pertaining to all the players in the courtroom—parties, witnesses, attorneys, and others:

  1. Their dress
  2. Their demeanor
  3. Their race

First, dress—for example, glasses, which can be used for a “nerd defense” but may also make white-collar defendants look more guilty. As to the role of glasses, the article left me actually speechless with a jury consultant’s advice: “savvy lawyers should spray a defendant’s glasses with PAM cooking spray so that the jury cannot see the person’s eyes, at least when the lawyer fears the defendant might come across as ‘shifty-eyed.’”

Second, demeanor—Capers points out that the lawyer can use nonverbal behavior to supplement or tear down testimony. It was this aspect of the paper that seemed most connected to the topics here on this blog. A lawyer’s demeanor can serve as a kind of “performative listening” that doesn’t just elicit testimony but gives some kind of statement in its own right:

Consider the lawyer who drums her fingers on the table while a witness testifies on the stand, or rolls her eyes or raises a skeptical eyebrow. Or the lawyer who quietly nods along at a certain point in a witness’s testimony. . . . They are in effect vouching for witnesses, or in the case of opposing witnesses, implying a witness is unworthy of belief. They are offering the equivalent of opinion testimony without themselves swearing an oath or taking the stand.

The way the lawyers sit aligned with their client or put a protective arm around the client is itself a form of opinion evidence, Capers argues—unacknowledged evidence that would violate Rule 404(a) if it were considered “evidence” in the first place.

Third, race—which connects with demeanor evidence but is of course much broader. As to demeanor, which has proven crucial in death-penalty juries’ deliberations, the impact of race makes jurors worse at reading faces: “Several studies have found that how jurors interpret facial expressions depends on the race of the juror and the race of the defendant; not only do we have trouble with cross-racial identification; we have trouble with cross-racial identifications of remorse.”

The impact of race also makes jurors worse at remembering the facts fairly:

[In one study,] participants invented aggressiveness when the actor was black, [but] actually failed to remember evidence of aggressiveness when the actor was white. In short, it is not only in cases involving minority defendants where race matters. Race also matters in cases involving white defendants, whom jurors are more likely to view as presumptively innocent, and cases involving white witnesses whom jurors deem presumptively credible.

Beyond these three factors explored in the articles, there is, of course, sexism such as jurors’ bias toward male experts as more authoritative, bias toward people with families, bias against the use of an interpreter, and male bias against overweight women. “Outsider accents” are viewed as less credible, whereas neutral and especially British accents gain extra credibility.

The question Capers struggles with is what to do about all of this. Given the almost impossible bar of overturning a jury verdict, even on evidentiary issues formally recognized as evidence, the basic effect is “What happens in the jury room stays in the jury room.”

And he points out that existing instructions may exacerbate the problem. Telling jurors to decide based on what they “saw and heard in court” may “giv[e] them tacit approval to consider anything they hear or see—including the dress of witnesses, or the presence of supporting family members, or the defendant’s demeanor even if he does not testify—so long as they do not consider as evidence anything the court explicitly prohibited, such as the questions of lawyers.”

Capers goes on to suggest a stronger admonitory instruction, phrased in concrete, plain language. He also suggests providing jurors with an evidentiary checklist of the witnesses and the documents. Capers’ suggestion here fits well within insights from cognitive science. For example, Daniel Kahnemann coined the phrase “WYSIATI”: What You See Is All There Is. Under WYSIATI, people rely heavily on affirmative information in front of them. Thus, an affirmative list of what the evidence actually is could direct attention toward the evidence actually presented and away from the natural tendency to fill gaps using other cognitive shortcuts.

Capers’ most radical suggestion is to redefine the scope of evidence itself. Under his proposed definition, evidence would include “anything that may come to a juror’s attention and factor into a juror’s deliberation.” The implications of such a definition seem vague at times. For example, he says that a rape victim’s clothing might trigger a 403 issue with the risk of unfair prejudice. But there is an aspect of personal autonomy in how people dress for court; if clothing could be prejudicial enough to trigger 403 then could it somehow come within the court’s discretion to order someone to, say, put on a sweater or take off a sweater? This reminded me of the incident from a couple of years ago where a weather reporter was asked to cover up, on air. And what should a judge do with flamboyant courtroom observers in high-profile cases, for example the Tex McIver trial that just wrapped up in Atlanta:

Capers answers most such questions by relying on detailed jury instructions. Footnote 153 in the article cites scholarship that instructions are not futile and do make a difference, especially when repeated and explained clearly.

I appreciated the realism at the end of his article, acknowledging a possible counter-argument: Why does any of this matter? Why shouldn’t jurors consider all that stuff, as they always have? Drawing on Critical Race Theory and his own professional and personal experiences, Capers out that dress, demeanor, race, and all those other factors are not neutral:

Who benefits from the status quo when we pretend dress does not matter, or demeanor does not matter, or the presence of family members does not matter, or language ability or up-speak or race or gender does not matter? Who benefits? And who does not?

Listening in the Family

Jennifer RomigLeave a comment

Last week’s allegations of sexual harassment against Judge Alex Kozinski brought a response by the judge:

“I treat all of my employees as family and work very closely with most of them.”

Invoking the family is not an entirely warm-and-fuzzy metaphor, as several have pointed out (hat tip to @gokpkd for pointing out this thread):

Family is both a place where people can let their guard down—this could mean everyone in the family, or just some, or just one. It’s also a place where ingrained patterns can replicate themselves over and over—for good, or for bad. The experience of being in a family sets up your framework, or “schemata,” for understanding what happens inside that family, as noted in Debra Worthington and Margaret Fitch-Hauser’s text Listening: Processes, Functions, and Competencies. For children, early family experiences also influence the way they communicate with everyone else in the world.

Families can be classified in two communication orientations, according to family-studies scholarship cited in Worthington and Fitch-Hauser:

  • Conversation orientation, in which all family members converse freely about a wide variety of subjects.
  • Conformity orientation, in which “a family stresses the importance of having homogenous attitudes, values, and beliefs.” Such families “stress[] the importance of hierarchy and clear rules.”

It struck me in reading reports on Judge Kozinski’s chambers that the environment sounds like the worst of all worlds: Judge Kozinski himself certainly appeared to take a broad and flexible orientation toward conversation topics, including but not limited to pornography. But clerks themselves were expected to conform, according to Heidi Bond’s account. She reports being asked to control her own reading preferences as the judge ordered; she reports the judge grabbed her arm and described her as his “slave.”   That’s not healthy. And the extent of just how toxic this environment was, for some clerks, continues to unfold.

Even for those not reporting harassment or heeding internal alarm bells prompting them to avoid the judge, the family metaphor could be troubling. I was reminded of another post on company executives invoking family:

Whenever executives talk about how their company is really like a big ol’ family, beware. They’re usually not referring to how the company is going to protect you no matter what or love you unconditionally. You know, like healthy families would. The motive is rather more likely to be a unidirectional form of sacrifice: Yours.

Months before these allegations against the judge, the “family” metaphor was being taken down by Sam Sanders (@samsanders). His thread (and many responses to it) explored how work as a family may really mean not only exploiting the powerless but also hiding what’s wrong and protecting secrets:

What is a strong and healthy family? Fitch-Hauser and Worthington describe a strong family as follows:

  • Commitment to the family and well-being of its members
  • Positive communication and the ability to engage in constructive conflict management
  • Regular expression and confirmation of affection among family members
  • Enjoyment of quality time together
  • A feeling of spiritual well-being
  • Ability to effectively manage stress and crisis situations.

This list reinforces that work may have some characteristics of a family. One would hope the workplace offers constructive conflict management and the ability to manage crisis situations.

But work is not family. Family is family.

Emotions in writing

Jennifer RomigLeave a comment

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

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

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

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

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

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

Dear Ms. Smith,

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

(1) foundational corporate documents for Acme;

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

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

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

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

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

Sincerely,

Antoine Associate

Antoine J. Associate

Law Firm LLP

Citytown, RH

 

Dear Janel,

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

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

(1) foundational corporate documents for Acme

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

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

(4) documents related to discussions with Third Party Industrial

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

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

Many thanks,

Antoine

Antoine J. Associate

Law Firm LLP

Citytown, RH

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

Tone Analysis of First Sample:

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

Screen Shot 2017-04-25 at 12.55.55 PM

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

Screen Shot 2017-04-25 at 12.58.10 PM

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

Screen Shot 2017-04-25 at 12.59.25 PM

 

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

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

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

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

Screen Shot 2017-04-25 at 1.05.01 PM

Tone Analysis of Second Sample

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

Screen Shot 2017-04-25 at 1.05.46 PM

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

Screen Shot 2017-04-25 at 1.07.41 PM

But joy came from the revised beginning and closing words:

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

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

Screen Shot 2017-04-25 at 1.10.19 PM

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

Screen Shot 2017-04-25 at 1.11.12 PM

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

Conclusion

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

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

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

“Govern yourselves accordingly.”

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

Screen Shot 2017-04-25 at 1.28.57 PM

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

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

“Um” and its discontents

Jennifer Romig1 Comment

Umm, hi everyone. Umm, does anyone want to join the Facebook discussion I’ll be moderating on Thursday, April 6 at 3 p.m. Eastern? (Note this time is corrected from some earlier messages.)? The topic is the article “The Lawyer’s Guide to Um” by professor Barbara Gotthelf in Legal Communication & Rhetoric: JALWD. Professor Barbara Gotthelf will be joining the conversation, which is open to all lawyers, legal professionals, and law students. You just have to join the Legal Communication and Rhetoric Discussion Group on Facebook before the discussion begins.

I previously mentioned the article here on the blog and recommend the entire thing—which is a pleasure to read—as preparation for the discussion. Gotthelf does not hide the ball:

[U]sing uh and um was not only “perfectly normal,” but also helpful in furthering effective communication.

Whether you hate “um” or barely even notice it, if you’re interested in lawyering and public speaking then this conversation is of interest to you.

This Discussion Group is a project of the journal Legal Communication & Rhetoric: JALWD and is active during scheduled discussions such as this one. This Discussion Group seeks to bring together lawyers, law professors, law students, and legal professionals generally to discuss legal writing and advocacy topics. I’m one of the Social Media Editors for Legal Communication & Rhetoric and look forward to moderating this discussion.

International Women’s Day: A Small Contribution

Jennifer RomigLeave a comment

Almost exactly four years ago I started writing posts for Listen Like a Lawyer, working on posts for several months before launching in August 2013. My main motivation was to write about listening as an underappreciated part of law practice and legal education. I believed then—and believe now even more strongly—that effective listening is a significant factor distinguishing successful lawyers and law students. I believed then—and believe now even more strongly as well—that effective listening is endangered by the smartphone-centric professional lifestyle embraced/necessitated/passively accepted by many in the legal industry.

Gender was not at the forefront of my motivations at the time, although I had certainly been “manterrupted” and advised to smile more and criticized for being too business-like and too meek etc. etc. etc. (There was also the visiting scholar who put a hand on my knee while saying anyone who teaches legal writing must be an idiot, and some other worse memories. But those experiences were not on my mind when launching the blog.)

In these four years, I’ve touched on gender in a number of posts. Maybe not enough, but some. I was going to manually curate those posts here, today, in recognition of International Women’s Day.

And then I realized something much better, something obvious that should have been here all along: a blog category for gender. Instead of copying and pasting links, I’ve searched through the archives and added the gender category to relevant posts. Readers should be able to see the gender category here at the top of this post. Just click on it for access to other relevant posts. “Do men and women listen differently?” is the most gender-focused content on this site as of now, and the answer is, “It’s complicated.”

 

 

Kairos in 2017

Jennifer Romig2 Comments

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

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

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

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

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

Or, more poetically:

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

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

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

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

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

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

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

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

Few things are duller than a paragraph stuffed with dates.

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

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

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

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

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

 

 

 

 

 

 

 

 

Love your lawyer (part 2): Emotional labor of lawyers

Jennifer RomigLeave a comment

Love Your Lawyer Day prompted the question: what makes clients love their lawyers? Client satisfaction is one way to gauge clients’ love. As addressed in an earlier post, client satisfaction depends on the lawyer’s competence and expertise. But client satisfaction is also intertwined with how the client experiences the process.

The client’s desire for a satisfying experience raises an aspect of lawyering that deserves more attention: emotional labor. Emotional labor is a common practice across service professions and “requires one to induce or suppress feeling in order to sustain the outward countenance that produces the proper state of mind in others.” Emotional labor generally occurs in personal interactions such as face-to-face or voice-to-voice moments. The person doing the labor displays emotion to influence the client or customer, and that display of emotion follows the rules of the profession. (The source here is Sofia Yakren’s article Lawyer as Emotional Laborer in the University of Michigan Journal of Law Reform, which is this post’s major source along with Joy Kadowaki’s Maintaining Professionalism: Emotional Labor Among Lawyers as Client Advisors in the International Journal of the Legal Profession.)

The concept of emotional labor was originally formulated and studied by sociologist Arlie Hochschild, who focused on flight attendants in the early 1980s. Emotional labor has been in the news with the rise of Uber and other on-demand service where customer ratings mean a lot. As reported in the Harvard Business Review Blog, “on-demand workers end up performing outsize amounts of what sociologists call ‘emotional labor,’ or expressive work to make the customer experience a positive one so that users come back to the platform.”

Lawyers may not use platforms like Uber apps (not much yet anyway), but Yelp ratings are important and sometimes problematic for many. And whether a lawyer gets clients from Yelp or a casual conversation at the Yale Club, lawyers do perform emotional labor. A common theme of all emotional-labor literature is the tools workers use for performing it:

  • deep acting
  • surface acting
  • detachment

Deep acting means trying to make yourself experience the emotions you are displaying. Surface acting means using techniques to fake emotions. (This can be done in good faith to help the client, or in bad faith as a sort of cover-up.) And, as Joy Kadowski found in surveying consumer-oriented lawyers, detachment means dealing with repugnant clients by “taking emotion entirely out of the interaction with the client, reducing the relationship to one that is ‘strictly business.’”

The emotional-labor literature does not paint a particularly optimistic picture. When professionals genuinely change their feelings or align them with their actions in deep acting, the costs of emotional labor go down. But surface acting and detachment are associated with emotional dissonance, which leads to a host of problems from addiction to depression to general alienation.

Another question is, who is emotional labor for, anyway? If the focus of emotional labor is on creating a comfortable emotional state in the client, then perhaps it’s for the benefit of the client. Emotional labor to keep the client as comfortable with the legal process as possible under the circumstances could indeed help clients love their lawyers.

But emotional labor also follows predictable rules defined by the profession, and part of what professionalism does is to “convince, cajole and persuade employees, practitioners, and other workers to perform and behave in ways which the organization or the institution deem to be appropriate, effective, and efficient.” (This is Kadowaki quoting sociologist Julia Evetts.) The sociologists coined the term “feeling rules.” And feeling rules are not just for the benefit of the client in the relationship; as Kadowaki points out, “In some cases [emotional labor] is done for the benefit of the attorney-client relationship, but at other times emotional labor is used to protect the emotional state of the attorney, and thus his or her performance of professionalism.”

What can be done to minimize the consequences of dissonance for lawyers while preserving what clients need? Dismissive attitudes might say the profession should self-select: if practicing law is so dissonant and painful, then don’t do it. But that’s not a very good answer, as Yakren points out: “Do we want to eliminate healthy self-doubt as a check on professional conduct?” No. Moreover, “constructing a profession comprised of a particular type of thinker could stifle creative solutions to complex problems.” (And thus it could make clients individually and collectively not love their lawyers even more than they already don’t love them.)

Solutions Yakren poses include expl0ring and teaching lawyers more about deep acting (which helps clients just as much if not more than surface acting and detachment, and emotionally costs less for the lawyer doing it); encouraging more autonomy for lawyers to exercise their consciences; and critiquing formalistic notions of professionalism and ethics to recognize the importance of context. Similarly Kadowaki points out that professionalism is far more complex and interconnected than any formalistic system can account for: “While the lawyers [interviewed in her study] defined professionalism as requiring the suppression of emotion, their description of their actual practice detailed significant emotional labor efforts and a much more nuanced negotiation of emotional expression.”

Sources:

Joy Kadowaki, Maintaining Professionalism: Emotional Labor Among Lawyers as Client Advisors in the International Journal of the Legal Profession (2015), http://www.tandfonline.com/doi/abs/10.1080/09695958.2015.1071257

Sofia Yakren, Lawyer as Emotional Laborer, University of Michigan Journal of Law Reform (2008), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2602520

Dan Defoe, Emotional Intelligence and Selecting Personnel Lawyers for High Emotional Labor Jobs, Psycholawlogy, July 15, 2016, http://www.psycholawlogy.com/2016/07/15/emotional-intelligence-and-selecting-personnel-lawyers-for-high-emotional-labor-jobs/

 

Loving your lawyer (part 1)

Jennifer Romig1 Comment

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

What makes people love their lawyers?

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

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

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

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

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

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

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

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

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

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

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

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

Do men and women listen differently?

Jennifer Romig1 Comment

A friend asked whether Listen Like a Lawyer has ever blogged on this:

Do men and women listen differently?

That’s an interesting—and fraught—question.

Some websites and popular books on communication skills propound appallingly simplistic statements with no research support. And the research on gender and listening that does exist has been described as “scarce and inconsistent.” (This is Laura Janusik surveying the literature up to 2007.) Still, the research is based not on speculation or stereotypes, but on a variety of actual studies with real participants (often college students, more on that later). And the results of this research serve to challenge overly simplistic beliefs about sex and gender.

FYI, the articles cited in this blog post are listed at the end. The information in this post focuses on listening generally or in professional settings, not in personal relationships. This is a very long post but it’s intentionally combined into one post so that the “nature” and “nurture” points can be taken together in context rather than in isolation. And the post tries to maintain the terminology of sex for biological differences and gender for psychological/self-identified/cultural roles.

Here is a simple takeaway if you don’t want to go through the rest, from a 2003 article by Virginia Tech professors Stephanie Sargeant and James Weaver:

Despite the popular reception of gender asymmetry in the way we talk with, listen to, and interact with one another, considerable research suggests that sex differences may actually play only a minimal role. Canary and Hause efficiently summarize the literature when they conclude, after considering hundreds of studies represented in meta-analyses, “sex differences in social interaction are small and inconsistent; that is, about 1% of the variance is accounted for and these effects are moderated by other variables.”

(Intrusive citations have been omitted from this quote.)

If that’s all you need to hear, now’s a good time to stop reading. The rest of the post goes into some various more specific gender-related findings on hearing and listening.

Hearing

The first step in listening is hearing. And this is where the strongest sex-related difference actually has been found. Audiology research in 2008 reported men are 5.5-times more likely to suffer hearing loss than women. After controlling for factors such as noise exposure, smoking, and cardiovascular condition, the study still found men had a higher rate of bilateral and high-frequency hearing loss (i.e both ears and higher sounds). An earlier study found “hearing sensitivity declines more than twice as fast in men as in women at most ages and frequencies.” That study also that hearing decline generally begins for men at age 30, whereas the age varies for women, and age-related hearing loss occurs regardless of low-noise or high-noise work environment.

Regardless of sex or gender, Listen Like a Lawyer previously blogged about lawyers and hearing loss here and here, and recommends to readers to have their hearing tested and get a hearing aid if recommended.

Listening

Beyond hearing, generally accepted definitions of listening involve some form of mental processing and responding. The International Listening Association has adopted a definition of listening that centers on process:

the process of receiving, constructing meaning from, and responding to spoken and/or nonverbal messages.

Detailed research findings on whether the broader listening process differs by gender are summed up by Kittie Watson and Larry Barker in their 2000 book for popular audiences, Listen Up:

Although the literature on cognitive processing suggests there are innate gender differences, most behavioral scientists believe gender differences in listening are more influenced by our cultural socialization than by a biological predisposition.

It seems there are two parts to unpacking that:

  1. possible innate gender differences in cognitive processing, and
  2. the behavioral view based on cultural socialization.

The innate differences have to do with brain activity while listening:

Brain research studying hemispheric processing discovered that when men listen they process language using the left hemisphere while women process language through both the right and left hemispheres.

If true, this study suggests implications for how men and women listen:

Since emotions are processed primarily in the right hemisphere, and language in the left, men may not be able to connect words to feelings as easily or effectively as women may.

Watson and Barker go on to summarize further research that because of this left-brain processing, men may be less distracted as listeners because they essentially receive only one message rather than multiple messages. This contradicts some popular psychology claiming men are more distracted listeners—reinforcing the point that overbroad answers to this question are too simplistic. In terms of brain processing and listening, another study cited in Watson and Barker found that men tend to remember the “gist” of the conversation, whereas women tend to recall precise words and phrases.

But the left-brain/right-brain finding is itself subject to dispute. These sex-based processing differences were found in an Indiana University study in 2001 by Phillips et al. But a larger study from two years earlier did not reach the same findings:

[A] larger scale MRI study (50 men, 50 women) concluded that men and women actually do not have substantive differences in lateralization of brain activity or brain activation patterns during a listening task.

This is from Andrew Wolvin’s overview of research in Listening and Human Communication in the 21st Century (2010), citing a 1999 study by Frost et al. (On a  related side note, the reliability of pretty much all fMRI research has recently been questioned.)

Listening comprehension

It’s also unclear whether any such processing differences make a difference in actual listening comprehension. Auburn professor Margaret Fitch-Hauser and colleagues did a study of actual listening comprehension—they called it “Listening Fidelity”—where participants were exposed to spoken words and then were tested on their listening comprehension. This study found no difference in listening comprehension among men and women (college students in this case). They also found listening comprehension did not significantly relate to the participant’s self-described listening style. In other words, listeners with a more “people-oriented” preferred style did not perform significantly differently from those whose preferred listening style leans towards information or tasks (more on this in a moment).

The listening process overlaps with working memory, as remembering the message (or not) relates to the listener’s response. A 2016 study of concentration and listening (as well as reading) comprehension reiterated past studies finding no gender differences in working memory. That study by Wolfgramm and colleagues, surveying a group of sixth graders in Switzerland, reached somewhat complex findings on gender. The overall finding was that concentration is a significant factor in listening comprehension, although not so much in reading comprehension. Along the way, the study reached findings that contradicted a perceived gender gap (favoring girls) in reading and listening:

Boys . . . outperformed girls in one of the listening comprehension tests. However, girls scored higher when tested for their ability to concentrate and for working memory but not when tested for vocabulary. This indicates that boys seem to have more problems with bottom-up processing than girls do. Nevertheless, problems with bottom-up processes do not affect boys’ performance in listening and reading. It would seem that boys compensate for their underperformance in concentration and working memory: We presume academic self-concept to be a possible factor accounting for that compensation.

Listening, self-concept, and social status

And this raises the strongly conflating issues of nurture and culture. “Academic self-concept” refers to confidence or anxiety at the task. In the Wolfgramm study, boys had a higher academic self-concept than the girls, and their self-concept compensated for whatever processing differences might exist. This is just one example of how socialization by gender could play a significant role in the question of sex, gender, and listening.

One paper reviewing various studies on gender and stereotypes pointed out that experimental participants listened more carefully when they occupied “low status” roles and were assigned to listen to “high status” individuals. The paper, by Michael Purdy and Nancy Newman, pointed out the connection between status and gender:

There are compelling reasons, according to LaFrance and Henley (1994), why women are usually better at “performing” the nonverbal affective display of listening than men. They link this motivation to men’s “greater social power relative to women in everyday social interactions.”

Listening preferences

As children grow into adult learners, they develop listening preferences which also correlate with gender. Dr. Kittie Watson created a questionnaire that has been used extensively, with survey questions revealing one of the following four listening styles:

  • The people-oriented listening style has an external focus on other people.
  • The action-oriented listening style prefers an organized approach focusing on the facts and results.
  • The time-oriented listening style prefers short and to-the-point statements that do not interfere with other scheduled activities.
  • The content-oriented listening style focuses on facts, evidence, and support, and less on who is speaking.

A 2007 study by William Villaume and Graham Bodie found a “rather small relationship” between gender and listening styles. They set out to study the connection between personality (including gender perceptions as one factor) and listening styles by administering a series of questionnaires to college students. Students completed the Listening Styles Profile as well as a questionnaire on their gender role exploring “gender role self-perception” resulting in a “masculinity” or “femininity” score. They also completed a battery of other surveys regarding personality traits, communication style, communication competence, apprehensiveness at communicating and receiving communication, verbal aggressiveness, argumentativeness, and “interaction involvement” such as attentiveness, perceptiveness, and responsiveness.

Villaume and Bodie did find that having an action, time, or content orientation was slightly affiliated with self-reported masculinity score. But people who strongly identified with “feminine” or “masculine” traits both scored higher in terms of people-oriented listening styles. In other words, “people-oriented listening is associated with both high femininity and high masculinity.”

And overall, the gender effect was small, explaining about 5 percent of their study results in light of the other personality-driven factors they included. For example the “Big Three personality traits” measure extraversion (sociability); neuroticism (anxiety); and psychoticism (deviation from social norms). Their study found that Big Three personality differences explained about 9 percent of their study results. The much broader list of personality traits did much more of the work in explaining their study results.

Villaume and Bodie ended the paper with some caveats including the inherent limitation of studying college students. Their comments were not about gender but I think it’s very much about the realities of working as a legal professional:

More importantly, the fact that all participants in this study were university students may affect the nature and strength of the canonical functions derived. These students have not held professional-level jobs with real pressures to get work done efficiently and effectively. It is possible that the listening preferences of these students may change with the added pressures and complexity of professional life after university. This study should be replicated with a sample of adults holding jobs in the working world. It is possible that people-oriented listening may no longer be characterized with all the positive associations reported in this study. Content-, action-, and time-orientations in listening may become more positively evaluated.

Listening skills in the workplace

Other research does look at how working professionals listen and communicate in the workplace. A 2013 paper on working professionals surveyed staff and managers in medium and large organizational environments. In this study, Welch and Mickelson used a “Revised Listening Competency Scale” (developed by Andrew Wolvin and Carolyn Coakley) to evaluate their survey participants on the following types of listening:

  • Discriminative listening means listening for auditory cues, attending to verbal and nonverbal signals.
  • Comprehensive listening means paying close attention to the actual message.
  • Therapeutic listening is emotional listening and letting a speaker “vent.”
  • Critical listening evaluates the message to support a decision of accepting or rejecting it.
  • Appreciative listening is listening for enjoyment.

Using these dimensions of listening, Welch and Mickelson studied working professionals focusing on two key variables: (1) level of employment (staff, line or middle manager, or senior manager) and (2) gender.  Were staff and managers different at listening? At the same level of employment, did men and women show differences?

Their findings are fairly complex. Here are a few takeaways:

  • For discriminative listening, the study did not find gender differences among employees at the same level (staff, line and middle managers, and senior managers).
  • For comprehensive listening, there were “very large gender differences” for line and middle managers, with women scoring higher. The study found: “Comprehensive listening is a core skill that differentiates managers from staff, and that also differentiates female managers from male managers.”
  • There was a moderate difference in genders on therapeutic listening, with women scoring higher.
  • There were apparently no significant differences among genders in critical listening at the same level of seniority.

Just an individual’s perception of gender role impacts listening style, Welch and Mickelson pointed out the possibility that male and female managers might relate to their organizational culture differently, explaining some of the differences they found. “Male and female managers might approach their organizational culture with different beliefs about different types of listening,” they hypothesized.

But their more significant findings centered on the listening progression:

[I]ncreased listening competency is associated with more responsibility.

This possibility led them to recommend more study of how listening quality develops over time.

Conclusion

To conclude this tour of the gender research on listening, here is an insight from Melissa Beall’s overview of intercultural listening. She’s quoting an earlier study by Purdy and Newman in 1999, which they presented at the International Listening Association. That study looked at “good and poor listener differences according to gender.” The study reached a finding that resonated:

[T]here were several characteristics that respondents identified as characteristics of good listeners, no matter which gender: eye contact; willingness to listen; shows interest; asks for clarity; gives feedback, and offers advice when wanted.

Thanks to Professors Margaret Fitch-Hauser and Debra Worthington for reading an earlier version of this post.

Sources and links (for non-paywalled sources)

Yuri Agrawal et al., Prevalance of Hearing Loss and Differences by Demographic Characteristics Among US Adults: Data from the National Health and Nutrition Examination Survey 1999-2004, Arch Intern Med. vol. 168 (July 28, 2008).

Larry Barker and Kittie Watson, Listen Up: At Home, At Work, In Relationships: How to Harness the Power of Effective Listening (2000).

Melissa Beall, “Perspectives on Intercultural Listening,” in Andrew Wolvin, ed., Listening and Human Communication in the 21st Century (2010).

Margaret Fitch-Hauser, William G. Powers , Kelley O’Brien & Scott Hanson, Extending the Conceptualization of Listening Fidelity, 21 Int’l Journal of Listening 81 (2007).

Laura Janusik, “Listening Pedagogy: Where Do We Go From Here?” in Andrew Wolvin, ed., Listening and Human Communication in the 21st Century (2010).

Michael Purdy and Nancy Newman, “Listening and Gender: Stereotypes and Explanations,” Paper presented to the International Listening Association (2000).

Stephanie Lee Sargent & James B. Weaver III, Listening Styles: Sex Differences in Perceptions of Self and Others, 17 Int’l Journal of Listening 5 (2003).

William Villaume and Graham Bodie, Discovering the Listener Within Us: The Impact of Trait-Like Personality Variables and Communicator Styles on Preferences for Listening Style, 21 Int’l J. Listening 102 (2007).

A. Welch & William T. Mickelson, A Listening Competence Comparison of Working Professionals, 27 Int’l Journal of Listening 85 (2013).

Christine Wolfgramm, Nicole Suter & Eva Göksel, Examining the Role of Concentration, Vocabulary and Self-concept in Listening and Reading Comprehension, 30 Int’l J. Listening 25 (2016).

Andrew Wolvin, “Listening Engagement: Intersection Theoretical Perspectives,” in Andrew Wolvin, ed., Listening and Human Communication in the 21st Century (2010).