Category: Law firm marketing

Unicorn lawyers

Jennifer RomigLeave a comment

What is a “unicorn skill”? It’s a skill that reasonably performing professionals in the field do not have, which is why they are just…reasonable. They can still do their job but are not “A” players. A unicorn skill is thus rarely found, and those who have it stand out as…unicorns.

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Courtesy Bernard Goldbach/Flickr/CC by 2.0

I learned about the term “unicorn skill” from this article (quoting John Maeda’s Design in Tech report) claiming that for software designers, the unicorn skill is not coding (as traditionally thought) but good writing. Coders who are also great writers are unicorns:

A core skill of the interaction designer is imagining users (characters), motivations, actions, reactions, obstacles, successes, and a complete set of ‘what if’ scenarios. … These are the skills of a writer — all kinds of writers, but particularly fiction, screenwriting, and technical writing.

(This segment of the article is quoted from blogger Susan Stuart.)

The unicorn idea connects to a larger meme within the design community about unicorn designers, who—according to http://www.uxunicorn.com —can be described as follows:

Mythical user experience designer with an advanced and adaptive skill range. Outstanding skills in graphic design, rapid prototyping, front end development, user testing, technical specifications, marketing and branding. It does not have an opinion, it has a process, and will harmonize with any environment.

Unicorn designers are basically “supernatural beings” that may or may not exist, but that hiring managers want. They combine the best of technical skills with the best of soft skills:

It’s important to be able to receive and give feedback and have the necessary soft skills to work efficiently with others. Fortunately, with the understanding and expertise of different skill sets, unicorns should be able to develop deep empathy for the people they are working with.

Obviously there is some skepticism here about whether such a designer exists, or could exist.

Unicorn lawyers?

If that’s a unicorn designer, then what’s a unicorn lawyer? It’s not that far off from the combination of advanced technical plus soft skills described above for designers and coders. Here’s a draft description, inspired by the above and tailored to the legal profession:

Mythical recent law grad with an advanced and adaptive legal skill set. Outstanding skills in client interviewing, case analysis, legal research and analysis, mediation, litigation, transaction, regulatory compliance, social justice, efficiency, people skills, client development, and pro bono. They do not have an opinion, they have a complete skill set, and will enhance the justice production and economic advantage of any firm or agency. They are also qualified to be a solo unicorn needing no further mentoring.

Skepticism about unicorns in design work reminded me of the skepticism within legal education: can a law school can really be expected to produce a practice-ready graduate immediately adaptable to literally any legal environment? Those who aspire to produce or to be unicorns embrace a perhaps radical faith in and dedication to their own professional development.

Assuming for the moment that producing / being a unicorn lawyer is a worthy quest, can we identify one single unicorn skill—a skill that is under-appreciated, not commonly found, and highly correlated with outstanding performance in the field?

After reading the claim that writing is the unicorn skill for designers, I posited on Twitter that legal writing might be the unicorn skill for lawyers:

That idea was instantaneously shot down, with multiple sources confirming that legal writing is necessary but not sufficient—at least not in law firms that need client business. Any skill that is expected as a baseline cannot be a unicorn skill. The skill identified as more unusual and more likely to be rewarded was rainmaking. And rainmaking can, of course, be defined in various degrees of formality:

Listening as the unicorn skill for lawyers?

Listening is not unrelated to client development and even “a**kissing.” So can we say effective listening might be a unicorn skill because it is not commonly practiced at the level of excellence and is highly correlated with overall excellence?

First, it’s important to acknowledge that in almost any lawyering that involves interpersonal interactions, listening should be practiced to at least an average level of competence. Lawyers have to listen to their clients to take the facts, and listen to their supervisors to take assignments, and listen to witnesses to take depositions and conduct witness examinations at trial.

But is listening commonly practiced at the level of excellence? That means picking up the wealth of verbal and nonverbal cues that intense listening can reveal. It means making people truly feel heard. It means hearing and processing what is not being said. It means recognizing the moment of opportunity to interrupt and show engagement, versus the moment to sit back in silence and let the speaker continue unabated. The judgment and skilled intuition needed for this type of listening is why it goes into good lawyering in a technical sense and good rainmaking in the social sense of being liked and trusted. Finding all these skills in one person (plus necessary but not sufficient skills like legal writing) makes for a great lawyer.

And—according to the hypothesis of listening as unicorn skill—you don’t see top lawyers who are not also really strong at listening. You might call it charisma, but listening is part of what these extra-effective professionals do so well, and that others don’t. They take in a lot of information efficiently in their conversations and remember it. When they repeat questions, it’s not because they missed something, but to see if the speaker answers differently or to refocus on a crucial area. They may follow up in writing with precision to pin down the recipients and preserve their “record” for later.

Even in settings not traditionally understood as emotionally charged, they help others feel heard, efficiently, because they subtly manage the conversation. That’s part of what makes for great rainmaking. They may gravitate toward and be promoted in jobs that reward personal networks and interpersonal skills, e.g. negotiation and business development. After interacting with a skilled listener, people may not identify listening as the exact reason they are impressed, but they walk away with a sense of confidence and trust, and a positive impression. Those without the same skills in listening are fine, average, reasonable, even very good—but not unicorns.

Although I’ve made the case for listening as a unicorn skill, I am genuinely interested in others’ opinions of what the unicorn skill for lawyers may be.

For example, Lucy Endel Bassli has gone in a completely different direction, arguing that a unicorn lawyer is someone who “likes process and seeks data.”

When we look across the profession, what skill is under-appreciated, not commonly performed at a high level, and signifying truly excellent performance in the field? Have you ever interacted with someone you consider to be a “unicorn lawyer”? If so, what led you to that conclusion?

Review: Katrina Lee’s The Legal Career

Jennifer RomigLeave a comment

511sXW1U++L._SX359_BO1,204,203,200_Katrina Lee’s new book on the business of law, The Legal Career: Knowing the Business, Thriving in Practice (West 2017), starts by exploring the design of a law-firm office. Lee points out that the law office can be seen as a microcosm of the legal industry: evolution, yes, but also persistent adherence to the old ways. Newer office designs place greater value on “flexibility, openness, and collaboration.” There is less of a differential between the size of junior associates’ office square footage and that of partners. Law libraries may look more like “a comfortable coffee shop,” or even (heaven forbid) be known as a “lounge-brary.” Less emphasis on space for physical books opens up more space for all employees. Despite these changes, some firms polish the walnut-grained panels the way things always have been.

The Legal Career goes on to chronicle law-firm billing conventions and salary structures, as well as the “precipitous” drop in solo practitioners’ salaries over the past 30 years, and a growing role for legal professionals who are not licensed attorneys. Lee cites research from Heidi Gardiner of Harvard that effective collaboration among law-firm offices and practices groups leads to increased revenue.

Lee now teaches at The Ohio State University Moritz College of Law; before that, she practiced law for 12 years including six as an associate and six as an equity partner. Her book brings together these two careers: it’s textbook for law-school courses in the business of law, with an admittedly heavy emphasis on civil practice. As Lee writes in her introduction, it is “law firm-centric.” It does include in-depth interviews with in-house counsel giving a helpful client’s perspective from within “the corporate law department.” Lee interviewed in-house counsel at a variety of companies ranging from Google to an Ohio-headquartered insurance company.

That is not to say The Legal Career is just a practical how-to manual for understanding the job market as it is and getting a job. That approach would simply replicate the current flaws and weaknesses of the legal industry; Lee’s book is more ambitious. For example, her interview with Dr. Silvia Hodges Silverstein delves into the Gender Billing study. Although female lawyers don’t work less than men and are not less productive, Dr. Silverstein’s study showed “clear” and “depressing” patterns: “[W]omen are assigned less strategic tasks, given more administrative work,” and “Male lawyers’ invoices were also less discounted than female lawyers’.”

The Legal Career explores other business problems and weaknesses such inefficiency and resistance to technological advances. Lee quotes D. Casey Flaherty: a client unhappy with a law firm’s advocacy or counsel should simply “get new lawyers.” But for complaints about the “content” and “production” of information as opposed to the underlying advocacy or counsel, a client may benefit from talking with their lawyer or law firm about better process and efficiency. In this regard, clients can drive change. Flaherty envisions the law firm as “long-term legal suppliers” and recommends more conversations between clients and lawyers to foster more efficient services for clients and more accurate, less discounted realization rates for firms.

Working efficiently raises the issue of incorporating project-management experts into the law-firm delivery model, and much broader involvement by professionals who are not licensed attorneys. Consistent with opinions of many in the law-firm innovation discussion, Lee questions the term “non-lawyer” as potentially “unproductive and unfriendly.” But what term should be used instead? And should lawyering be regulated differently to allow more “legal technicians” and the like? In this way, The Legal Career also takes on challenges with access to justice.

Near the end of The Legal Career, Lee explores the need for innovative legal education. Here again, the range of opinions offered is a strength of the book. One quote from William D. Henderson jumped out at me:

There’s a real opportunity here. Lawyers are always happy when they are solving their clients’ problems. It’s a great day when you solve your client’s problem. In this day and age, we’re going to solve a lot more problems better; that will bring a lot of psychic happiness to lawyering. The economic model for this is unclear, but it’ll sort itself out.

Lee doesn’t—and can’t—provide easy answers to such questions. She encourages creative discussion about the big issues facing lawyers, such as in a classroom setting. But a class on the business of law is not necessary to learn from this book. Anyone who reads The Legal Career will be challenged to reflect on their individual careers, the meaning and measurement of law-firm success, innovation in legal education and the legal industry, the role of lawyers in society, and the future of the profession.

 

 

 

 

 

 

 

 

 

 

#InHouseTwitter

Jennifer RomigLeave a comment

In-house counsel and anyone who works with them—such as, say, outside counsel—will be interested in the new hashtag, #InHouseTwitter, started this summer by @J_Dot_J. J.J.’s Twitter bio tells us she is an “employment/cyber-security lawyer, mom to a 2-boy wrecking crew, endorsed as ‘not half bad.'” She has shared some pithy—sometimes salty—advice from her in-house perspective and prompted an honest and growing discussion from other in-house counsel as well.

#InHouseTwitter is active at 4 p.m. Central on Thursdays. Follow the hashtag for announcements of upcoming topics. Most recently J.J. prompted a long thread on relationships with outside counsel:

The responses varied from the positive…

….to the negative

with many nuanced observations and anecdotes in between.

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.

Categories of listening

Jennifer RomigLeave a comment

Katrina Lee from Ohio State tweeted earlier this week:

The article referred to in her tweet is by  Jim Lovelace, Director of Talent Development at Pillsbury Winthrop Shaw Pittman LLP, and was published in the ABA Law Practice Today.

As Katrina said, it is a quick read. And it’s a pretty powerful read, too. The essential premise is that to be effective, a listener must move beyond “self-focused listening.” What does that mean?

In my 25 years of experience as a practicing lawyer and legal career development professional, I have observed that lawyers spend the vast majority of their work time—when they are not talking, that is—as self-focused listeners. When they hear others’ stories, their minds are occupied with: What are the flaws and where are the potential liabilities? Where is the “good stuff” on which I can build a case? They dig for facts, often asking for more information to construct their narratives and theories. This is not surprising. This is what lawyers have been taught, from law school onward, to do.

But there’s more to listening than this self-focused approach. Lovelace introduces empathic listening and comprehensive listening, two other categories of listening that may not be right for a contentious deposition but are very, very right for interpersonal situations at work. Lovelace uses a hypothetical in which a trusted senior associate blindsides the senior partner by announcing he’s leaving the firm. Different listening methods can affect not just the tone but the outcome of such conversations.

Lawyers love categories, and somebody this blog will have a pull-down menu listing the many categories of listening that communications experts have identified. When it comes to (1) self-focused listening, (2) empathetic listening, and (3) comprehensive listening, Lovelace’s article is an excellent introductory resource. It doesn’t take long to read, and it’s really good. Thanks for the tweet recommending the article, Katrina!

A Day of Listening      

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Thursday, September 15, 2016, will mark the International Day of Listening, an event envisioned and promoted by the International Listening Association. This Day of Listening has its own website with some excellent listening resources and ideas.

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For lawyers, law students, law professors, and legal professionals, I will highlight a few ideas for what to do on the International Day of Listening. Or any day, really. The big idea is that listening is helpful on any given day.

Invite someone to a conversation.

The website provides a template form for inviting someone to a conversation. The template looks a little bit like a subpoena or affidavit, so lawyers wishing to make a personal connection with someone may want to avoid or modify the actual form and focus on the concept. The form envisions providing a topic for the conversation; this isn’t randomly generated small talk but a purposeful conversation. Even more important, the person initiating the conversation makes a commitment: “I promise to give my undivided attention and to do the best job of listening I can.” This is a one-way promise offering something valuable without expecting or demanding something in return.

Invite a group to a conversation.

The website also provides a template form for initiating a group conversation also centered on a stated topic. Here the group makes a pledge to one another: “We will all pledge to give our best efforts to listen well to one another.”

The phrase “best efforts” stuck out at me as an interesting term for lawyers. Ken Adams has analyzed the history and meaning of this phrase in contracts. Interpreting “best efforts,” various courts have imposed a good faith standard, something more than a good faith standard, a reasonableness standard, and a diligence standard. Because the idea of “best efforts” can be vague in a legal sense, it helps to compare efforts against a benchmark, Adams points out. Benchmarks can include explicit promises made during negotiations, industry standards, the same party’s practices in similar situations, and how the parties would act toward one another if they were united in the same enterprise.

Fortuitously, the website for the International Day of Listening does offer a nice benchmark-type resource. They don’t call it a benchmark or a bookmark but actually a “ListenMark.” It’s available both here and here in the Professional Activities section of the website. I think the intent is for people to use the “ListenMark” as a bookmark or other tangible reminder. Although the name is kind of corny, the content is excellent. From putting electronic devices away and giving undivided attention to giving nonverbal signals and being familiar with others’ expectations about how to show respect, it’s a solid overview of good listening practices. It could be a good review to glance over just before key meetings.

The Professional Activities section of the website is structured around lideas for professional activities to try on September 15:

·          Tech-Free Meetings
·          What Happens When You Tune Out
·          Free Listening
·          Listening to Opposing Viewpoints
·          Listening to a Life Story
·          Listening Café
·          Discussing Issues
·          Listening to TED
·          “When am I listening or being listened to”
·          Successful Listening Strategies
·          First Hit the Pause Button

One of my favorites on this list is “Listening to a Life Story.” Carole Grau submitted this idea, and it’s a good way to learn more about a longtime coworker—perhaps someone you see every day but don’t know that much about. The core of the activity is this:

Have the listener identify a significant company employee or a long­time employee/member that they (the interviewer) can interview about that person’s (the interviewee’s) life story and their experience within the organization. What have been significant events in the company/organization or in the person’s life while they have been employed or a member?

Bar associations encourage activities such as “take opposing counsel to lunch.” What about dedicating some listening time to a longtime contributor within your own firm or organization? The longtime courthouse runner at my old law firm recently passed away; he was a consummate legal professional with so many great litigation stories. He would have been an incredible interview along the lines Grau suggests.

The outline for listening to a life story gives more details on conducting such a conversation and listening effectively. It recommends resources such as an app offered by  StoryCorps, which itself promotes a National Day of Listening the day after Thanksgiving every year. (In a world of so much talking past one another, we really can’t have enough listening days.)

These are just a few of the ideas and resources available on the website supporting the International Day of Listening. The purpose of this post is to encourage lawyers, law students, law professors, and all legal professionals to recognize and practice listening on September 15, 2016, and other days too.

Resolution: Delight them

Jennifer RomigLeave a comment

Delight your clients.

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

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

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

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

It is in this space — personal, one-on-one and face-to-face — that we create real change for ourselves and each other.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

Listening until it hurts

Jennifer RomigLeave a comment

Recently I tried a workout at Orangetheory. This is a relatively new exercise franchise offering intense one-hour workouts with running, rowing, lifting, and uncountable numbers of crunches. Everyone wears a heart monitor, and throughout the workout you can check out the monitor to see just how hard you and your heart are working—as well as everybody else in the class.

I was nervous to try a new workout, but every time I glanced up there, my score was green. Green is good, right? It’s aerobic, and aerobic is good, right?

Actually no.

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To score points in the Orangetheory workout, you have to go beyond green. You have to get into the “orange zone” (thus the franchise name, I suppose) or even the red zone. That means not walking, not jogging, not running at a steady clip. That means sprinting, and panting, and gasping for breath.

You get lots of points for orange and red. Not so much for green.

At the end of the workout, the guy next to me had scored 24 points and I got 6. He crushed me even though he appeared to be near exhaustion the entire time. He crushed me because he appeared to be near exhaustion the entire time.

As I pondered this failure, I wondered whether the lesson might to listening as well.

It seems likely that many of us are sailing comfortably along with our listening and other communication skills. Of course we’re putting out effort. We make eye contact. We use active-listening techniques to paraphrase back important nuggets of the conversation and move it forward. We take notes unobtrusively and follow up with e-mail confirmations.

We’re in the green zone of listening.

What would it look like to move into the orange or even red zone?

Listening is a receptive communication channel (like reading, and in contrast to writing and speaking). To design an Orangetheory program for listening, we would need to raise the intensity level quite a bit. It’s not about trying a little harder on one or two points all the time. It’s taking a short amount of time to listen, radically.

But how would we know that someone was working in the high-intensity range of this receptive skill?

Maybe by measuring the proportion of time spent talking to listening. There is a natural give and take in conversations, but if you’re talking and listening comfortably—for you, subjectively—you may be malingering in the green zone. (See Mark Goulston on “How to Know If You Talk Too Much.”)

Some have suggested an 80-20 rule of focusing on the other person. Steve Yastrow, who writes about improvisation techniques for marketing, says to keep the focus 95 percent about the other person. That is red zone material. That’s hard.

Maybe the mindfulness of the listener to what the speaker is saying. There’s no “brain monitor” for focus—at least no affordable one—but theoretically if the listener’s mind is filled with what to say next and what to eat for dinner, that may not even be in the green zone of listening. It could be the dreaded blue zone, which is literally the zone of pointlessness in Orangetheory because you score no points.

Red-zone listening takes in information in a powerful and efficient way. At the front end of the listening process, focus and memory are as crucial as body strength and VO² max are to powerful workouts.

Maybe one key metric would be whether—and to what extent—the listener feels he or she is actually being listened to.

One reality of exercise and mental processes is that they work only to exhaustion. Attention is a muscle that can be depleted. The body and mind together can be depleted. (Read anything by Daniel Kahneman’s work, or anything about his work. In a study of parole decisions, judges made harsher decisions when they were hungry and tired after hearing several cases.)

But the concept behind any program like Orangetheory is to build capacity by stressing the body. The stress has to be appropriate, but what is appropriate has changed. (See this article from the New York Times on a 12- minute workout that helped veteran runners shave time off their 5Ks simply by a few 10-second spurts of going all out.)

Georgia attorney and magistrate judge Phill Bettis told me about a church mission to West Virginia where he met and talked with a retired coal miner. Phil and I were discussing emotional intelligence and empathy, and how they relate to listening. This was a vivid memory for Phil because he wasn’t sure at first how to find common ground with someone whose life experience had been so very different from his. Phil’s experience might be viewed as one type of “red-zone listening.”

So is listening to someone in grief, or a life crisis. An attorney recently wrote on the Texas Bar Blog about his experience with depression, and how other attorneys may serve as a “patient friend.” No one seeks a conversation like this out in order to hone their own skills, of course. (Actually some people run from them, although those will admit doing so are rare in their honesty.)

Being in such a conversation creates a moment to leave the green zone (the comfort zone) behind. Really listening at such a moment—which regardless of your legal training and expertise may actually be the only way to help—makes all the other efforts pay off, and far beyond what can be quantified in zones a scoreboard.

Here is a related post imagining “Tabata” training for listening.

Photo credit: Courtesy E’Lisa Campbell/Flickr/CC BY-SA 2.0

Two hemispheres of law practice

Jennifer RomigLeave a comment

 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.