Category: Law practice

Listening and metrics of quality

Jennifer RomigLeave a comment

If a client feels listened to, is that client likely to use the lawyer or law firm again? Maybe, but not if the lawyer listened deeply and sincerely while charging three times what the client expected for the work. Metrics for lawyers and firms get complicated very fast.

Courtesy Flickr/Scott Akerman/CC by SA 2.0
Courtesy Flickr/Scott Akerman/CC by SA 2.0

Kenneth Grady’s latest Seylines post points toward the lack of process (and process-based metrics) for delivering legal services. The lack of process makes it difficult to measure the services and compare them. Instead, “counseling and advisory skills” are viewed as what can and should be measured:

[M]any general counsel talk as if legal services delivered by one firm are not distinguishable in substance from those delivered by another firm. Rather, say general counsel, it is the counseling and advisory skills that separate the desirable outside lawyers from the rest of the pack. While soft skills are key qualities differentiating lawyers, until we become a process-oriented industry, legal services will not be interchangeable.

So I think what he is saying is, general counsel may be using metrics about soft skills because they don’t have “harder” metrics about process. Grady points with hope toward signs of better process:

As the ways in which lawyers handle matters become standardized, it becomes easier to compare what law firms do, the quality delivered, the value clients receive, and to find areas for improvement. This is the first major step to transforming legal service delivery from a world of inputs and outputs with a black box sitting between them, to a world of transparent legal services and costs.

I hope he’s not saying that “counseling and advisory skills” will become unimportant in a world of truly standardized legal services. I don’t think he’s really saying that, although perhaps he would like these skills to be measured in the background against a foreground with objective metrics of process.

Whether metrics for counseling and advisory skills are a good thing, or just a second-best waiting for something better, Grady’s post made me want to know more about the metrics for these skills. In particular: How do GCs measure whether lawyers and firms are listening to them? 

The most accessible list of metrics I found was published by the Valorem Law Group. (Thanks to Ron Dolin’s post on “Getting to New Law: Standardized Quality Metrics” for pointing me to the Valorem list.) I took a look at the common metrics suggested in the Valorem list to see whether listening was mentioned. It wasn’t explicitly, but it could play a role in quite a few of them.

Here’s a chart brainstorming how listening may play a role in lawyers’ and firms’ performance on a number of common metrics. The metrics are on the left; thoughts on listening are on the right:

Typical metric

How listening may play a role
Cycle time Effective listening could help resolve matters more quickly and reduce cycle time.
Performance to budget Effective listening can help counsel gauge how difficult a matter will be (e.g. reluctant or poor witnesses) and thus estimate budget realistically
Results to predicted outcomes Similarly, effective listening can help with more accurate predictions by teasing out bad facts and revealing problems with potential testimony.
Timely work completion Effective listening can help the lawyer understand the client’s preferences on setting up timelines (more flexible or more aggressive and strict).
Percentage of holdback awarded and buckets of holdbacks awarded These are incentives that are “indicative of widespread client satisfaction.” Effective listening could contribute to the overall effect of widespread satisfaction.
Re-engagement percentile and   re-use index A client is more likely to want to re-use and re-engage with a lawyer or law firm that listened to the client effectively. Or at least, a client is not likely to engage a firm or lawyer who didn’t listen.
Recommendation index A client is more likely to recommend a lawyer or law firm that made the client feel listened to.
Creativity index This metric “[r]equires client to assign a score on lawyer’s creativity in solving problems, structuring settlements, providing strategy ideas, etc.” Understanding the client’s goals and what the client can give up is an example of effective listening that contributes to problem solving. In general, effective listening enhances problem solving. (This claim is worth a more detailed post at a later time.)
After action ratio The Valorem Law Group post notes that an after-action review isn’t necessary in every case. Effective listening could help a lawyer gauge whether a client wants to spend time on this kind of review. Effective listening in an after-action session seems like it could be crucial to making the session productive, especially in a sensitive situation.
Quality of advice Effective listening could contribute by allowing the lawyer to have more complete information when crafting advice, and a better understanding of client preferences in receiving advice.
Quality of written product Listening indirectly contributes to good writing by giving the writer more information. “Listening” to how the writing sounds in draft form helps a writer modulate tone. Reading out loud and listening to the words can be very effective.
Quality of outcomes Listening can tease out weaknesses and strengths that the lawyer can then use to help the client understand what kind of outcomes to expect.
Wins v. losses Can listening contribute directly to wins and losses? I’ll make a case here: Poor listening can result in problems such as failure to make a record, so yes. Good listening can steer a lawyer toward the arguments that matter most to the judge, so yes. And effective listening can help a lawyer manage which cases are appropriate to go the distance as “contested proceedings,” thus affecting the overall set of cases measured in terms of winning and losing.
Collaboration As defined by Valorem Law Group, a collaboration event would be “two or more people meeting to discuss the case, brainstorm about strategy and tactics, and similar discussions yielding value for client.” Listening is crucial to these meetings. This one isn’t hard at all.
Transparency index Transparency seems to be more about what the lawyer says and shares than how the lawyer listens. But effective listening can help a lawyer recognize what the client wants in terms of frequency and manner of sharing, and when the client may not understand. (Giving a correct and detailed explanation that the client does not understand may not help a lawyer’s transparency rating.)
Total value index This index “[f]actor[s] in all metrics weighted in whatever manner client sees fit.” Listening could contribute to the client’s perception of “total value.”
Percent of claims resolved within 30/180 days of claim As noted earlier, effective listening could help resolve matters more quickly and reduce cycle time.

The list here does not include all of the metrics from the Valorem Law list. Although I try to relate almost every legal topic to law in some way, I just could not see the connection to metrics such as “effective disaggregation,” “average number of timekeepers per matter,” and “average seniority on team,” as well as a number of quantitative measures based on fees. (But wait. For average seniority on team, maybe there is a connection to listening. Ineffective communication with junior associates may lead them to seek opportunities elsewhere, reducing the pool of senior associates available for staffing.)

Another caveat is that not all legal matters involve the traditional definition of listening, as in some form of spoken and/or nonverbal input. For those that do involve meetings or phone calls at any step of the way, the metrics above suggest that listening can affect a pretty broad variety of metrics.

The Valorem Law post notes that many of these metrics are “subjective” such as whether a client would recommend a firm or lawyer and what the client feels is the “total value index.” And that brings us back to the difficulty of measuring listening in any context.

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.

Defining success for new lawyers

Jennifer Romig1 Comment

The state bar where I am licensed just blast e-mailed a survey for the Educating Tomorrow’s Lawyers project of the Institute for the Advancement of the American Legal System. According to the survey e-mail, this project has three goals:

  • finding out “what law graduates need to launch successful careers in the legal profession”
  • creating “models of legal education to better fulfill those needs”
  • identifying “tools legal employers can use to make better hiring decisions”

The point of the survey is to clarify what “skills, characteristics, and competencies” are necessary for new lawyers in their first year of practice. The survey addresses a myriad of potential competencies from legal research to finance and accounting to personal resilience. Survey participants are asked to rank each item on a four-part scale from immediately necessary for new lawyers to not relevant (as in not relevant ever, in the survey participant’s area of practice).

The list of potential competencies is fascinating; just taking the survey should be a thought-provoking experience. Legal employers who have set objectives for new attorneys’ professional development — or who want to set such objectives— should be following this survey very closely. Lawyers who want to reflect on their own individual strengths, weaknesses, and possibilities should find it informative as well.

The survey questions were arranged by category, and several questions hit on listening either directly or indirectly. In the communications category, the survey asked about the skill of listening “attentively and respectfully.” In the category for emotional intelligence, the survey asked about reading and understanding others’ subtle cues as well as exhibiting tact and diplomacy.

If you have the opportunity to fill out this important survey, I urge you to do so. Educating Tomorrow’s Lawyers is making a major constructive effort to address the challenges “we” — defined broadly by me to include law students, law schools, lawyers, legal employers, and the clients eventually served by all of the above — together are facing.

Here is more information about the Foundations for Practice initiative. 

Second-chair listening

Jennifer Romig2 Comments

The role of a good second-chair lawyer at trial is strategically crucial. Yet the second chair’s contribution can be difficult to see, compared with that of the lead lawyer starring in the show. Two major components of the second chair’s contribution are preparation (before trial) and listening (at trial). The preparation gives the second chair something to contribute, and the listening is what allows the second chair to make that contribution at the right time.

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Courtesy Flickr/Independent Man

I wanted to write about second chairing partly based on my own experience (years ago) as a second chair at depositions, arbitrations, and trial. Sometimes I knew I was being helpful, such as by pointing out some questions the lead attorney didn’t quite get to. Other times I worried that I was being annoying or distracting and wasn’t sure how to adjust the filter on how much to share. It was crucial to listen not only to the information being revealed through the proceeding itself, but also to the subtle cues of the first chair on the best and worst times to speak up.

Various ABA publications have some good advice for second chairs such as “How to Shine as a Second Chair” by Myra Mormile and “Your First Trial: Understanding the Second-Chair Role” by Michael R. Carey. A few major themes of listening are woven throughout. One is active listening. The other is listening for what’s not there (perhaps the hardest kind of listening, cognitively). Another important aspect of the second chair’s role is that even though it’s not a starring role, the second chair is being observed as well. The second chair’s demeanor in the act of listening and assisting has to be controlled just as much as the lead lawyer’s.

Virtually every piece of advice on second chairing will talk about active listening. Mormile cautioned second chairs going to trial for the first time every to avoid “deer in headlights” syndrome. She’s not addressing active listening in the traditional sense of listening, rephrasing the statement back to the speaker, and asking him or her to go on. She’s talking about the activity that should come about as a result of listening:

Don’t react; anticipate. If the first chair turns to you more than you turn to him or her, you have failed as a second chair. Avoid this by anticipating where your first chair, and the case, is headed. Listen to your first chair, the opposing party, and the fact-finder. If opposing counsel directs the witness to an exhibit or references a specific case, you should pull it on your own before your first chair asks for it.

This idea that the second chair is always active also resonated with Carey:

[W]hen your first chair crosses that expert, you get to listen and take notes. But second chair is not a casual observer role–you are actively listening and evaluating the evidence for substance and delivery. Tell your first chair about any problems before it is too late. If you cannot successfully fulfill this role, you might as well be sitting in the gallery.

Listening for what is not said, what’s left out, what’s elided — that’s one of the hardest parts of listening, at trial or otherwise. The reason is what Nobel Prize winner Daniel Kahneman calls the availability bias. Our brains are biased towards information that is present in the affirmative sense. Yet to be a good second chair, a lawyer must try to overcome this bias and listen for missing pieces. As Mormile points out, “When your witness leaves out a point in his or her testimony, bring it to your first chair’s attention.” How does one overcome the availability bias to do this? It’s difficult, but checklists may help trigger your brain to search for gaps, a suggestion that certainly resonates with best practices for trial prep. (Just Google “trial preparation checklist.” Here’s one example of too many to count.)

Beyond listening for specific information, problems, and gaps, the second chair’s listening role is also atmospheric. The second chair should have some extra cognitive bandwidth (that the lead lawyer doesn’t, given the demands of that role) to monitor the entire scene, as Michael Carey points out:

You have the luxury of looking around the room to see who might be falling asleep, who is aghast, who is rolling their eyes, or who is nodding along with your first chair’s line of questining. First chair relies on you to provide a comprehensive evaluation of how the jury and the judge are responding to the evidence.

And your listening is itself being observed, as Carey further points out: “[R]emember that you are being watched by the jury. If you look like you are trying to spy on opposing counsel, the jurors will lose trust in you.” Thus, non-distracting, focused, respectful body language is crucial. Here are a good quick primer on effective body language in court and some videos from litigation consulting firm A2L.

As noted above and in earlier posts on this blog, I’m a strong proponent of checklists. The parent of the  checklists-in-the-professions movement is Dr. Atul Gawande, author of The Checklist Manifesto: How to Get Things Right. Gawande recommends that process-based checklists should include some sort of post-performance or “after action” review. For second chairs, this is crucial advice for many reasons, not least of which is that presumably most second chairs want to move up to first chair at some point. Second chairs can seek an informal “after action” by asking their first chairs, “How did I do?” Listening is very difficult to evaluate  in part because the act of listening is itself difficult to observe. But a first-chair lawyer who just finished relying on a second chair to perform a listening role may be able to give better feedback because of the intensity of that experience.

The audience for listening?

Jennifer Romig1 Comment

Knowing your audience is key to any effective blog project. So who actually is the audience for Listen Like a Lawyer? Who cares — I mean who actually does care — about listening enough to read this blog and share posts from time to time?

At the outset, Listen Like a Lawyer’s primary audience was practicing lawyers and legal professionals, kind of like a CLE in blog format. There is such thing as a listening CLE as well as many CLEs on communication with significant listening components. Compared with several hours of listening training that detract from billable or other core work, the benefit of the blog is regular reminders and varied content in small segments over time. As a proponent of listening, of course I would recommend both listening CLEs and  attention to small snippets of information spread out over time such as via this blog.

To reach lawyers, the blog has thus far tried to cover topics of general interest from marketing to litigation and mediation (with gratitude to guest Greg Parent) to management issues involving feedback and team dynamics. Some lawyers are highly engaged with listening in a particular context, such as listening to children (with gratitude to Karen Worthington for a wonderful guest post).

But this blog does not seek only to preach to the converted, i.e. great listeners who are engaged with listening concepts. My background is legal writing, and sometimes I get the feeling that many of the wonderful books and blogs on legal writing are devoured solely by lawyers who already care deeply about legal writing and are fantastic at it. Bryan Garner has written about the Dunning-Kruger effect as applied to legal writing: bad legal writers cannot even realize they are bad. We could debate how much Dunning-Kruger really applies to legal writers, but it most certainly does apply to listening. (Expect more elaboration in a future dedicated post.) Efforts to break through the unwarranted illusion of listening competence take a variety of forms.

One strategy is guilt and implied threat. Perhaps a lawyer is not getting good evaluations on soft skills due to listening problems. Perhaps a lawyer feels a lack of connection with clients and potential clients and wants to try some things to do better.

A rhetorical tactic for reaching less-engaged potential blog readers is through the Upworthy-style heading. I haven’t written that many headlines such as “10 Ways Your Law Career Is Being Sabotaged By Bad Listening!” or “The Secret Ingredient to Getting Clients to Love You in 60 Seconds.” But the blog has published some serious posts directly focused on listening problems such as mismatches in team communication styles, the crossover of bad listening into personal life, and issues with mobile devices and other forms of distractions. A few humorous posts have experimented with mock scare-tactics such as “Four Scary Kinds of Listeners” (a Halloween special) and “A High Intensity Listening Workout” — basically, Tabata for listening. Other forms of humor include Tami Lefko’s guest post with great TV clips on active-listening, and a compilation of listening advice for Valentine’s Day.

No lawyer has ever openly denied to me that listening is important, but there are often discernible traces of a passive, unengaged attitude. Most of all I think it comes from a fixed mindset — the belief you’re either a good listener or not, and probably can’t do much to change that fixed quality. This blog is really trying to break through that fixed mindset about listening and promote a growth mindset instead. Clearly we need more posts directly on the growth mindset. (Carol Dweck is the guru of this field and her book Mindset is a highly recommended read.) The growth mindset is the way out of guilt and threat as the motivation for learning.

In the spirit of growth, the blog has also sought to teach some subtle information that lawyers may not have encountered explicitly before such as the power of nonverbal communication and discourse markers in speech. Some of the posts have delved into topics that perhaps are more suitable for trial consultants, such as this early series on cognitive biases. I don’t think the blog has done enough to speak to legal professionals who work in teams with lawyers, and that is a gap I hope to remedy in the future.

Beyond lawyers and legal professionals, the blog’s other main intended audiences are law professors and law students. I’m still so grateful to Neil Hamilton for his in-depth law review article on listening, which confirmed for me that this is an important conversation to have in the legal-education community. This blog has therefore covered the classroom and other aspects of teaching. For law students, the blog has talked about listening in the classroom and in experiential situations. Georgia State’s Kendall Kerew contributed a wonderful guest post on listening skills in externships. You can expect additional future posts on intriguing ways to teach listening in law school.

So, more than a year later, how has everything turned out? Did these efforts to reach the various components of the blog’s intended audience actually work?

The blog has reached its core audiences. Law professors have been the most ready audience and the most positive in sharing and helping. Thank you to all friends and colleagues who have been so encouraging! I am also grateful to the Academic Support blog and many professors such as Susan Landrum and Gabrielle Goodwin who have shared posts with J.D. and L.L.M. students. Contributing to a conversation on educating future lawyers as good listeners helps the blog indirectly achieve its goal of encouraging better listening in the legal workplace among lawyers, clients, and judges.

One way I know the blog has been at least somewhat successful in reaching lawyers and legal professionals is that they have found this blog through interesting and relevant search terms. They have used social media to share various posts as well. On a personal note, many have been willing to talk with me and share their thoughts. I was grateful for the opportunity to guest-blog about listening at Legal Productivity. The audience of practicing lawyers and legal professionals is the blog’s most important target, and will be a more direct focus of blog content moving forward.

A very small, surprising audience has been clients affected by their lawyers. One search query that led someone to this blog was, “Do I have to listen to my lawyer?” These search queries may, ironically, lead the searcher to posts about lawyers’ ethical duties to listen (and not listen) to their clients.

A larger and more surprising audience has been undergrads or graduate students, most of them apparently working on listening-related term papers. The blog has been found by a lot of search terms for the HURIER model of listening and the Worthington-Fitch Hauser model of listening. Although it was not the blog’s intent to be a source for college term-papers, such readers are welcome and in fact should know that listening is crucial in the law-school classroom and interactions with judges and clients. In other words, effective listening yields a competitive advantage in law school and lawyering. That was a central theme of the blog at its outset and remains so today.

Thanks to all who have read Listen Like a Lawyer in its first year. Please keep the blog in your Twitter feeds, your Facebook status updates, and your RSS subscriptions. Also please feel free to send ideas for future posts. Writing this retrospective inspired a number of ideas and I look forward to sharing them.

Listening at Trial

Jennifer RomigLeave a comment

United States District Judge Mark Bennett (N.D. Iowa) has published a great article on the “Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker ‘I Am a Litigator.'”

Studying the entire article would be an excellent use of time for any litigator trial lawyer. Judge Bennett’s coverage of being a great listener — Roman numeral VII in the article — is centered around a pretty strong criticism: “In my view, listening skills are incredibly underdeveloped in most lawyers I have observed in the courtroom.”

Judge Bennett outlines how listening is essential to core competencies of a trial lawyer such as understanding the other side’s case, being responsive to the judge hearing the case, and effectively examining friendly and hostile witnesses. It’s particularly helpful that he gives a specific example — in transcript form — of how a good lawyer can listen effectively at trial. Judge Bennett further points out that listening is rather helpful to building trust with clients, an important skill for any type of lawyer.

Hat tip to the Legal Skills Prof Blog, which shared this article earlier in the week.

Not thinking like a lawyer

Jennifer RomigLeave a comment

I went to meet the listening professors (Debra Worthington and Margaret Fitch-Hauser) expecting deep theory. And they did give some, using words like “psychometric” and reflecting on the history of the listening field.

Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser
Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser

But their practical work in trial consulting was where our experiences and vocabularies overlapped a lot more, and where our most interesting conversations took place. Professor Worthington worked for 15 years in courtroom communications before she delved more deeply into listening theory and research. Professor Fitch-Hauser, now celebrating her retirement from Auburn, also works as a consultant and is the person who drew Worthington into the listening field. Their work together culminated in the listening textbook Listening: Processes, Functions and Competency.

The combination of their theoretical strength with their practical experience in the legal field made me doubly grateful for the opportunity to meet and talk with them over a long lunch in Auburn.

Worthington recounted her work with a difficult witness whose arrogance had damaged his case, both on the substance and his refusal to heed his lawyers’ guidance on demeanor. Worthington studied his testimony to understand his view of the case. She talked with him to find out what “really made him tick.” And then she used his underlying motivation to explain the case to him in a different way, and to motivate him to adopt good witness practices not because his lawyers told him too but for his own reasons as well.

As I thought about this anecdote, I became even more intrigued with the role trial consultants may play as listeners. For example, intuition may affect one’s listening. A lawyer’s intuition on dealing with a horrible witness may overlap — but not completely — with a trial consultant’s own intuition. And thus the lawyer and trial consultant would bring complementary methods to the table not just in generating themes and telling the story, but in listening to the people who in turn will be listened to by the jury.

Along these lines, Worthington shared that at an early juncture in her career, after she had already been working in legal communications, she considered whether to continue with graduate education or go to law school. Her mentor advised the former. “Debra,” he said, “your greatest strength is that you don’t think like a lawyer.”

Fitch-Hauser echoed the value of stepping outside the lawyer’s perspective: “It is crucial for attorneys not to expect the client to think as they think, and to make adjustments, and to not expect the jury to think as they think. They need to adjust their strategy and the way they tell their story to meet the jury’s needs.”

Both Worthington and Fitch-Hauser have been interested in questions about how listening intersects with personality, and how listening can be measured. One question I wanted to ask both of them relates to measurement and self-assessment: “How can an attorney know if he or she is a bad listener?”

Fitch-Hauser jumped to take this question:

There are some things anyone — attorney, or any other profession — can do, if they are willing to be objective. Ask yourself: When someone asks a question, do you always know the answer before the answer is given? If your own answer is yes, you may be listening to yourself rather than the other person. This is “selective listening,” which by one definition means “listening for the information that reinforces your own attitudes, ideas, and feelings.”

Worthington added the terms “assimiliation” and “constrasting” to the discussion at this point. Assimilation means taking in information that fits your pre-existing beliefs. Essentially, if you believe someone is similar to you, then you may perceive information from that person as closer to your existing beliefs than it really is. And the opposite is contrasting. If you go into a situation thinking someone has different beliefs, you may tend to perceive that person’s information as more different from your own beliefs than it really is. (Assimilation and contrasting seem generally related to the cognitive phenomenon of confirmation bias. Some general thoughts on listening and various cognitive biases including confirmation bias have been explored on Listen Like a Lawyer here and here and here.)

Fitch-Hauser embodies thoughtful listening in her own conversational style, and reinforced that with some advice: “Don’t be afraid to use silence.” Sometimes clients come to lawyers with a “story” that may or may not match the facts. By talking with them and learning how they feel about the case, and at times remaining silent, an attorney can find out more about the real story behind what the client presents as the “official story.”

Worthington and Fitch-Hauser also touched on the power of nonverbal communication as an aspect of listening. “Look at the client as the client is talking,” Fitch-Hauser advised. “You can hear the pause and see them glance away. And then you can say, ‘It seems like there’s something else you want to add.'”

Ultimately, being a bad listener is somewhat part of the human condition, Worthington said. We all have moments of effective and ineffective listening. Lawyers, and anyone else who cares about communication, can seek an honest self-assessment of when they listen well and not so well. By keeping a communications journal, lawyers can start to recognize the situations when their listening is strong and weak. Reinforcing a theme from their textbook, Worthington noted that the answer to good listening versus bad often lies in the motivation to listen. “Motivation is finding some reason inside ourselves to expend the energy and get in there and listen.”

Fitch-Hauser sharpened the edge a bit: “Pretending to listen isn’t listening. Many people go through the motions. They put on the face, they lean forward, they nod, and they turn on a light. But they truly need to be home.”

Checklists for listening

Jennifer Romig2 Comments

The checklist is a surprisingly simple yet effective tool for improving performance in fields from aviation to construction to medicine to law. Checklists help professionals catch what Dr. Atul Gawande, the chief evangelist of checklists in the workplace, calls “the stupid stuff.”

Flickr/AJ Cann
Flickr/AJ Cann

Checklists also assist with collaborative work on large, complex projects. Complex challenges may not have a right answer, but project-management-style checklists help teams communicate and collaborate efficiently to handle uncertainty and forge a path forward.

I’ve written about how checklists help legal writers (here and here and here). Professor Kathleen Elliot Vinson of Suffolk Law developed an iPhone app with legal writing checklists (reviewed by Bob Ambrogi here). Checklists can help lawyers and law students listen more effectively as well.

For example, a listening checklist should be very useful for face-to-face meetings to discuss a new assignment. During a face-to-face meeting, forgetting to talk about a key topic would fall under Gawande’s definition of “stupid stuff.” Running down the checklist at the end of a meeting can help ensure key topics are covered. This process minimizes inefficient interruptions and follow-ups later. It also maximizes the value of the initial face-to-face time. Click here for a sample checklist for summer associates and legal interns.

Listening checklists could also be useful for client intake meetings, prep sessions such as deposition or mediation prep, feedback on assignments, and so on. Checklists for lawyering tasks are not a novel idea, which raises the question: is a “listening checklist” really that different from a regular checklist of relevant tasks?

Just as a pilot has numerous checklists in the flight manual for a variety of scenarios, a lawyer may have a listening checklist for handling meetings and a different kind of checklist for preparing an SEC filing, for example. The categorical name of the checklist doesn’t matter, but Gawande’s great work on checklists, The Checklist Manifesto, teaches that a long, cumbersome, everything-but-the-kitchen-sink checklist is not a particularly good one. Any clear checklist that encourages efficient, effective communication is a valuable checklist for lawyers.

Thanks to Professor Tami Lefko for feedback on this post.

Listening and the art of the “callback”

Jennifer RomigLeave a comment

What do oral argument, marketing pitches, and improvisational theater have in common? This blog previously reviewed Steve Yastrow’s informative and entertaining book, Ditch the Pitch: The Art of Improvised Persuasion, and addressed how some of Yastrow’s recommended approaches could apply in the oral-argument setting.

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Philip Larson/Flickr

Some of these applications may be unexpected — but one particular tactic is something skilled oral advocates have been doing from time immemorial: the “callback,” or referring to something someone said earlier.

“Calling back,” or referring to a judge’s earlier question or comment is a classic tactic for oral argument, although lawyers don’t tend to use the term“callback” in this context. Whatever you call it, Yastrow’s explanations for why it works so well in business translate fairly well to the oral-argument context as well. (And apart from oral argument, the approaches in Ditch the Pitch certainly deserve consideration by lawyers developing their marketing pitches conversations.)

Callbacks demonstrate listening. And listening generates rewards, Yastrow writes, namely the rewards of your audience’s attention and interest.

Callbacks also help the audience understand the conversation. They make it more coherent: “[A] callback ties material together, making it easier to understand and engage with that material,” Yastrow writes. When the information is easier to understand, it feels more cohesive and resonant. It’s more believable.

Most subtly, callbacks involve the audience. In improvisational theater, callbacks help make the audience feel that they are “in on the joke.” They are “with” the cast and not part of the audience. Similarly, using a callback in oral argument involves the judge in the argument as more than a passive listener. When done right, mentioning a judge’s earlier comment or question can subtly suggest that the judge has already begin to take a few steps down the road toward accepting a certain position.

Yastrow’s advice for executing a callback strategy is helpful for oral advocates (and legal marketers) as well. The three basic steps, he writes, are discovering the opportunity for a callback, remembering it, and integrating it into the conversation.

Discovering the opportunity for a callback means being alert. Notice things that are important to the audience. Try to make a mental (or actual) list of “Things That Matter” to the audience. Advocates can prime themselves to be alert by their usual preparation steps such as studying precedent and the particular judges’ prior rulings. During the argument, advocates would certainly want to make a note of the dominant topics, i.e. Things That Matter to the judges.

Remembering the opportunity can be difficult because of the need to be engaged in the conversation itself. This is exceptionally true in oral argument, where time seems to distort itself and nerves interfere with simple tasks like taking a drink of water. (Anyone remember Tom Cruise struggling to take a sip in A Few Good Men?)

Yastrow recommends attaching visual images to the comments to help with recall. For example in a trade secrets case, if the judge asks whether other employees had access to the alleged trade secret, an advocate might visualize a large company meeting with all employees sitting in an auditorium, and the trade secret sitting on a platform on stage. This visual technique may sound a bit kooky, and it is explained fully in a very kooky and wonderful book, Moonwalking with Einstein by Joshua Foer. As Yastrow shows, it works in serious business situations. And it will work in oral argument as well. (Lawyers and law students, have you tried this?)

Lastly, the callback must be integrated into the conversation. There’s a ham-handed way to do this and an effective way. “Play it cool,” Yastrow advises; don’t say, “Hey, look at me, aren’t I clever, I just came up with a callback!” For advocates, one risk is over-playing their hand. Presenting the callback as a “gotcha” to the judge is probably worse than doing no callback at all.

To be effective, the callback must naturally fit in with the conversation itself. And that requires an overall mindset of alertness to the audience’s interests and needs, as well as a willingness to take the risk of improvising.

Therapeutic jurisprudence and listening

Jennifer RomigLeave a comment

Suffolk Law School hosted a workshop Friday, April 11, on “The Study and Practice of Law in a Therapeutic Key: An Introduction to Therapeutic Jurisprudence.”  Therapeutic jurisprudence has been discussed and debated since the 1980s, and a working formal definition has emerged, quoted here from Professor David Yamada’s blog post about the workshop at Suffolk:

Therapeutic Jurisprudence (TJ) concentrates on the law’s impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law’s role as a potential therapeutic agent should be recognized and systematically studied.

TJ has been applied in specific contexts such as mental-health diversion programs, juvenile-offender programs, workers’ compensation, medical malpractice, and other areas. Apart from specific areas of law and problems, therapeutic jurisprudence has been explored as an overall mindset for the practice of law. TJ founders professors David Wexler and Bruce Winnick have written (Hein sub. req’d) that TJ asks “whether the law’s anti-therapeutic consequences can be reduced, and its therapeutic consequences enhanced, without subordinating due process and other justice values.”

Listening seems inextricably linked with a therapeutic approach to anything involving other people. Here are some preliminary thoughts on therapeutic and anti-therapeutic approaches related to listening skills that one might see in law practice and legal proceedings:

Therapeutic Anti-therapeutic
Comfortable environment Threatening, high-stakes environment
Listeners use receptive body language Closed body language
Sufficient time for sharing one’s story Time constraints cutting off story
Listener demonstrates understanding such as by paraphrasing key points Listener responds immediately with advice and instruction
Listener has expertise or experience in the situation Listener doesn’t “get it”
Responses help identify solutions Responses are “gotcha” moments
Door is open for sharing further information Pressure to remember and include all points in one sitting

I’d love to hear from law professors and lawyers who have studied and applied TJ concepts and methods in their areas of practice. A quick look at the literature suggests that TJ has had the biggest impact on specific court systems designed to address specific problems. Can and should TJ concepts filter into the general court system and general law practice? Perhaps it should be something that lawyers are familiar with and can draw upon when a situation needs more than just dispassionate analytical investigation and solutions. Mediators trained in TJ would seem particularly valuable in certain cases calling for a therapeutic approach.

And one does not need to have an advanced law degree in therapeutic jurisprudence to understand that giving someone your attention and listening to his or her story is one of the most therapeutic gifts anyone can share.