Category: Law practice

Law practiceLegal communicationPeople skills

Rules for listening

Every law student learns about default rules in contract law. A recent post from Matt Homann at the [non]billable hour shows how default rules can affect communication as well.

Here’s the scenario: A team (lawyer-to-lawyer or lawyer-to-client) meets to discuss a matter. After the meeting, “everyone seems to reach consensus on what to do next.” But later, it becomes painfully apparent that “some didn’t agree at all.”

Homann suggests the problem may be the way the team leader interprets silence.  If the leader assumes from silence that the client understands and agrees with everything just discussed, that leader may be in the midst of a real communication breakdown. Silence may and often does mean something very different: resigned acceptance, covert resistance, simmering resentment — or just lack of understanding.

The problem is that a default rule of interpreting silence as acceptance/agreement is often inaccurate. In law-and-economics terms, applying this rule leads to suboptimal outcomes. (Economics experts – please don’t get technical here. This is a loose metaphor.)

So instead of assuming that silence means agreement, Homann suggests the opposite. At the end of a meeting, ask everyone if they agree. In the absence of explicit verbal affirmation, assume they do not agree. Homann draws from Patrick Lencioni’s book The Advantage to suggest this method for both internal meetings and client meetings. The safest and best interpretation of silence is, as Homann writes, that silence means “no.”

What I particularly like about Homann’s post is that it shows a specific listening breakdown and a technique for addressing that breakdown. Listening is not a monolithic, intuitive talent that one is either good or bad at, forever. By studying listening successes and failures, we can derive and apply specific methods to improve.

For lawyers working in teams, what methods do you use to listen effectively in meetings? What about working with clients — how do you handle a client that doesn’t say much in a meeting?

Law practiceLegal communicationPeople skills

Embracing interruptions

One of the rewarding aspects of starting this blog has been the opportunity to challenge preconceived notions about listening — both my own and others. This recent post from the Harvard Business Review, “Turn Your Next Interruption into an Opportunity,” is a great example of such a challenge.

The preconceived notion is that interruptions interfere with real work. The author, Douglas Conant, takes a more positive spin on interruptions: “Every ‘interruption’ offers an opportunity to lead impactfully, to set expectations, bring clarity to an issue, or infuse a problem with energy and insight.”

But he doesn’t stop there. More radically, “these thousands of little interruptions aren’t keeping you from the work, they are the work.” Conant encourages leaders to affirmatively seek out interruptions and to engage with both the issues they raise as well as the relationship dynamics they reveal.

Lawyers: can you embrace this positive spin on interruptions? How do you cope with interruptions?

 

AdvocacyLaw practiceLegal communicationLegal skillsLitigation

Oral argument as an improvised conversation

Oral argument — is it really a “conversation”? How can it be an authentic conversation when the power dynamics are so skewed toward the judges and when the attorney is ethically bound to advocate for the client? A recent incident with Judge Richard Posner is just one example of the inherent challenges of oral argument. Advocates may err on the side of scripted arguments and default answer structures as defense mechanisms to survive in this environment. Conversely, great advocates argue with flexibility, maintaining their basic persuasive agenda but effectively listening and responding to the judges’ questions.

I was thinking of the challenges of oral argument when I came across about a new book, Ditch the Pitch: The Art of Improvised Persuasion by Steve Yastrow (SelectBooks 2014).

ditch-the-pitch-cover-150

Yastrow seeks to replace the scripted, one-size-fits all business “pitch” with the art of “improvised persuasion.” This book is most directly relevant to lawyers interested in marketing, and I highly recommend it for that reason. But for this post, the focus is on making oral argument more responsive and conversational using Yastrow’s improvisational techniques. The rest of the post substitutes [advocates] for salespeople, and [judges] for customers.

The basic truth is harsh and hard to accept. Yastrow begins by attacking the belief that anyone — customer, judge, anyone at all — is actually interested in someone else’s scripted pitch/argument.

“[H]ere’s the unadorned truth: Your [judge] doesn’t really care what you have to say about yourself or what you are trying to [argue.] Your story is not all that interesting to him. He cares much more about his own story.” 

This underlying lack of interest (in what the advocate has to say) informs everything else Yastrow recommends:

“The first thing you have to do if you want [judges] to listen to you, is to earn the right to be heard. Contrary to the most fundamental beliefs about [advocacy], you do not earn the right to be heard just be delivering the right message to the right [judge] at the right time. You earn the right to be heard once you have engaged your [judge] in a dialogue that is meaningful to him.”

Conversations that are meaningful to the other person (the customer or judge) arise out of a “diagnostic” mindset. This means finding out what the other conversation partner wants, needs, and is concerned about. A diagnostic conversation stands in opposition to a prescriptive conversation where you just tell the other person what he or she needs. (This would be oral arguments consisting entirely of scripted arguments and scripted answers to questions.)

How does one create a diagnostic conversation? An advocate cannot turn the table on a panel of judges and say, “Your honors, I’d like to start by learning more about your needs in handling the challenges of deciding this case. What are your sticking points with my client’s position?” But advocates *can* use oral argument as the opportunity to learn how the judges are thinking about the case.

In this sense, many techniques from the book seem applicable:

  • “Think input before output.” Perceive and comprehend the input conveyed through the judges’ questions and even at times their facial expressions and body language.
  • “Say less to notice more.” Speak slowly enough that judges have a chance to think and ask questions as they arise. Make points thoroughly but concisely.
  • “Turn down your analytic brain.” This doesn’t mean abandoning legal analysis. It means trying to turn down the overly critical self-judging that comes from worrying about how things are going as they happen. If an advocate is berating him- or herself for bungling a question, the advocate is not open to the new cues being offered and how to keep the focus on the judges’ needs.
  • “Listen for the game.” Oral argument isn’t a game, but this language, drawn from theater improvisation, means finding the common ground of the improvised conversation: “What are we really doing? What are we really talking about? What’s going on here?” If an advocate is emphasizing the substantive legal question but the judges are asking technical questions about procedure or the effect on future cases, then there is no common ground — and no shared game to play.
  • “Ensure your [judge] keeps saying yes.” In Yastrow’s words, “If your [judge] says ‘no’ to something you say or disagrees with a statement you make, you will immediately feel the conversation stall.” Indeed. To try to minimize these stalled moments, focus on areas of “mutual affirmation and agreement.” It seems that mutual agreement may come many sources: taking reasonable positions that the court might actually adopt; using binding precedent in skillful way; invoking shared understandings such as canons of construction; and possibly invoking shared imagery that is meaningful to the court.

And one final interesting approach: “Keep 95 percent of the conversation about the [judge].” When selling, Yastrow continually monitors his own performance in the conversation and asks, “Are we still talking about them?” Phrased in terms of oral argument, “[the judge] wants to hear about himself. If you notice that the conversation is about you, change it! Focus the conversation on your [judge].

There are some other interesting points from the book to be explored in later posts, but let me end this post on the 95 percent point. How can advocates actually advocate for their clients while also keeping 95 percent of the focus on the judges? I have a few ideas, such as highlighting what the opinion will mean for the court as precedent going forward. What do you think? For oral advocates, have you explicitly tried to keep the focus on the court, and if so — how?

And more generally: does the analogy of a sales pitch correspond to oral argument? How can advocates listen and improvise more effectively at oral argument?

 

 

Law practiceLegal skillsLitigation

Is listening different for civil vs. criminal lawyers?

Do lawyers need different listening skills depending on their area of practice? I recently posed this question to an attorney with experience as a prosecutor and white-collar defense attorney, as well as civil practice in a highly regulated area.

This attorney described different listening challenges in civil versus criminal practice:

  • On the civil side, when talking to witnesses, this attorney looks for the witness who suddenly says too much: “When they start talking and talking — a lot — I know I’ve hit paydirt. When they’re blathering and not answering the question at all, especially when they had been answering directly and succinctly for the prior questions, that gives me a red flag that they are uncomfortable with the subject matter of that question. In turn, that leads me to pry deeper and not let them off the hook about that subject.”
  • In contrast on the criminal side, one challenge is to notice what is not said–particularly when the witness clams up about an important and difficult topic. “The witness will be in the middle of talking through a timeline and then, wait a minute–what happened in those two days you didn’t talk about?” Thus in interviewing witnesses on a criminal matter, the attorney focuses on “listening for the gaps.”

Civil and criminal lawyers have different cultures, different procedural rules and norms, and different consequences as a result of their work. Sometimes I wonder if they have much of anything in common, other than going to law school. What about listening? Do you think civil and criminal lawyers face different listening challenges? Or is effective listening fairly universal, regardless of the area of practice?

Law practiceLaw schoolLegal communication

Listening to your 1L voice

Listen Like a Lawyer has been on hiatus during a busy time for first-year legal writing students and professors. As the students wrote and finalized their first appellate briefs, I located my own old 1L appellate brief. Even without the 1996 date, the blue paper and Courier font are like a voice from the past.

photo-5

Maybe this “voice” should really be “voices”: I can hear the words of my professor in sentences that I never would have written on my own. For example: “The district court’s ruling can be comfortably affirmed under the first or third parts of the test.” What 1L comes up with the words “comfortably affirmed”? Also any use of the Code of Federal Regulations was purely a product of what she told the class to do. I had no idea what I was doing.

And that leads to another voice: the voice of doubt. When in doubt, many people return to their comfort zone. For me, the comfort zone was description–basically, just summarizing the facts and holdings of cases. Several sequences of paragraphs consist of nothing more than “In one case, xyz happened. . . . In another case, abc happened . . . .” This brief was guilty of the incredibly common 1L mistake of the “book report,” as described by Kristen Tiscione in her article on classical rhetoric, Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning. Yes, those paragraphs should have had stronger topic sentences developing an actual legal standard. In “listening” to it now, I can hear the voice of a 1L who was just not sure what to say.

Although there is much to criticize and pity in the brief, there are also moments of confidence. Good writing often corresponds with appealing rhythm and pace–features that one can hear when reading sentences out loud. In describing the client, who had been fired due to tobacco addiction and possibly his age as well, the brief juxtaposed his seniority against what the CEO wanted: “[The plaintiff’s] age and his advanced career actually hinder him; companies want ‘new blood that will stay forever.’ (R. 18).” The brief even reached for a figure of speech: “HIs tobacco addiction resulted in the Defendant’s firing him and the doors of the biotechnology market simultaneously shutting in his face throughout New England.” There is no doubt I stated these words — verbatim — at my 1L oral argument.

Legal writing scholars debate the existence of “voice” in legal writing. As Chris Rideout has written, legal writing has a “professional voice” but not so much a “personal voice.”  Legal writing professors walk the fine line of trying to teach the professional voice while not crushing the personal.

Perhaps the voice of legal writing occupies a middle ground, as Rideout suggests: the voice comes from a “discoursal self” that performs a discourse tradition in its own way in that context, at that moment. The appellate brief, for example, embodies a certain tradition, yet the brief-writer has the opportunity to contribute to and even change the tradition in performing it.

And my old brief was certainly a performance. The words reflect the very personal effort of a fledging grownup, trying on and testing out the professional voice of a lawyer. My actual voice as a 1L probably sounded a lot like it does now, because the human voice remains relatively stable from age 20 to 60. But my “voice” as a writer and a lawyer has developed so much since that 1L brief, with one of the most obvious improvements being stronger topic sentences. They could hardly have been worse.

And now from the past to the future. Law students: Without falling victim to hoarding, maybe you should print out a hard copy of your 1L brief. Who knows whether your memory sticks and cloud servers will still be easily accessible 20 years from now? And consider saving your actual voice as well. What about doing a video time capsule to yourself? Tell your future self what you’re doing. Talk about the law generally, or describe your most recent writing project or your favorite class. Show the way you think. Use an app such as SpeakingPhoto to narrate what you were thinking when a particularly photo (yes, even a selfie!) was taken. Your future self will likely appreciate the chance to hear your voice when you were just a “baby lawyer.”

And experienced lawyers: maybe find a way to “listen” to the young lawyer and law student you used to be. Dig up some old work or find an old tape from a trial-advocacy class. Naive? Cynical? Confident? Scared? Yes, yes, yes, and yes. Sometimes it’s enlightening to listen to your own voice.

The author dedicates this post to Stephanie Feldman-Aleong, a former colleague at Emory Law School and professor at Nova Southeastern, who passed away in 2008. Stephanie inspired me in many ways such as by sharing her own 1L work with students.

Thanks to Beth Wilensky of the University of Michigan Law School for comments on an earlier draft of this post.

Law practiceLegal communicationPeople skillsProfessional responsibility

Lawyers and hearing loss

Hearing is necessary for effective listening. Thus, hearing loss is a critical issue for professions that require listening, such as lawyering. In her frank and informative book, Shouting Won’t Help: Why I–and 50 Million Other Americans–Can’t Hear You, former newspaper editor Katherine Bouton describes her struggle with hearing loss while trying to do a job comparable in many ways to lawyering.

ImageAs her hearing was declining—always in conjunction with personal stress such as her father’s death—Bouton was faced with boisterous editorial meetings and intense individual conversations. She tried to hide her deteriorating hearing for many years but ultimately began to accept help via hearing aids and other technology. Bouton tells her story in such an honest way; I can’t recommend this book enough. For further praise of the book, see Seth Horowitz’s New York Times review.

Hearing loss is far more common than many would expect. An estimated 48 million Americans experience some degree of hearing loss (about 17 percent of the population). “Nearly one in five people, across all age groups, has trouble understanding speech, and many cannot hear certain sounds at all,” Bouton writes, citing Johns Hopkins researcher Dr. Frank Lin. With approximately 1 million American lawyers in practice, the same math suggests that more than 170,000 lawyers are facing some degree of hearing loss.

Yet hearing loss is “an invisible disability”: “There’s no white cane to signal a problem, no crutches, . . . no bandages or braces,” Bouton writes. The lack of outward signals can mask various efforts to compensate. “Most hearing-impaired people quickly learn to nod or smile or respond in a noncommittal way, taking their signal from the speaker and the people around them.” These forms of compensation are imperfect at best, as Bouton acknowledges: “I lose the train of the discussion and ask a question that was just answered. I think we’re talking about one thing when we’re talking about something completely different.” And over time, the accumulation of awkwardness can lead to isolation and withdrawal. Bouton describes how she maintains her social lifelines, yet she also decided long ago not to participate in group conversations except with her closest friends.

Shouting Won’t Help is both a personal narrative and a treatise on hearing impairment. Bouton traces her own diminished hearing and environmental aggravators—primarily, noise. She acknowledges her fear of the conditions associated with hearing loss such as depression, heart disease, insomnia, and dementia. As to dementia, the correlation maybe a side effect of social isolation or cognitive overload, or there may be a common pathology—which, to Bouton and anyone facing hearing loss, is “deeply distressing.”

Bouton’s work is a particularly helpful read for lawyers because her work as a senior editor at the New York Times had a lot in common with lawyering. She struggled in phone conversations, editorial meetings where people talked over one another, and group lunches in noisy restaurants. She missed a lot in large public events such as the Broadway plays she was assigned to cover. “I communicated with my writers as much as possible either face-to-face, where I could read their lips, or by e-mail. I e-mailed people who were ten feet away. But there were a couple of writers who wanted to talk—by phone. Often these calls would go on for a half hour or forty minutes, with me catching just as much as I needed to murmur occasionally ‘That sounds good,’ ‘Oh, I’m so sorry,’ or ‘Well, just get it to me as soon as you can.'”

As Bouton came to terms with her impairment and need for hearing aids, she began talking to some trusted former colleagues. They had noticed behaviors that could describe lawyers’ attempt to compensate as well. As one friend and colleague remarked, “’I did notice that you often held back at meetings, and didn’t necessarily engage in conversational back-and-forth after you’d given your own assessment of a piece. . . . I recognized a certain reticence in your approach to the job. I could see from your reading of our knottier science stories that your analytical gifts were considerable, and yet I sensed a reluctance to use them fully in face-to-face interactions. I attributed this reticence to temperament, or to a discomfort with the management of the magazine, or to . . . a waning of interest in the workaday routines of journalism after years in the trenches.’”

As her hearing loss became more severe, Bouton was forced to accept the loss and seek help. Her book describes many methods for addressing hearing loss, from hearing aids and cochlear implants to phone amplifiers, caption technology, and special alarm clocks that mimic the sun at dawn. Technology called hearing loops can help with otherwise incomprehensible noise in public spaces such as museums and ticket loops. Bouton worked intensively with doctors and audiologists, using virtually every technology available. Yet she also experienced rough transition with some of her hearing aids and a missed opportunity to fully adjust to the cochlear implant.

Despite aversion to being a “joiner,” she also joined the Hearing Loss Association and attended meetings, where she met new people and kept up with new technology. Although her adjustments were time-consuming and results imperfect at time, Bouton concludes the book with gratitude—both for the many advances making now a “good time to be deaf” and, on an individual level, for the “freedom of coming clean” and not having to “fake it” anymore.

Next week Listen Like a Lawyer will feature interviews with lawyers who have faced and adjusted to hearing impairment in their life and work. Please share your thoughts below or contact me at jromig@emory.edu if you would like to share your experience with hearing loss.

Clinical legal educationLaw practiceLegal skillsLitigation

Secrets in the courtroom

Courtesy of the J. Paul Getty Museum

Courtesy of the J. Paul Getty Museum

People over-value secret information, according to a series of studies reported in the New York Times reported earlier this year. Information designed as “classified” is treated as highly valuable precisely because it is secret.

When two groups in an experiment read the same government report—which was labeled “classified” for one group and “public” for the other—the results were stark: “people who thought the information was secret deemed it more useful, important and accurate than did those who thought it was public.” In other words, they applied a heuristic or psychological shortcut—in this case, the “secrecy heuristic.” Study participants were also more impressed by decisions based on secret information as opposed to freely available information.

Reports on these studies prompted some thoughts about listening, jurors, and the secrecy heuristic. Jurors are instructed to listen very carefully to what happens during trial. How, then, do jurors’ minds respond when attorneys object to evidence? The entire purpose of an objection is to prevent the jury from hearing something! (Or seeing it.) Within the flow of events in the courtroom, an objection stops everything.

At this point, the secrecy heuristic could come into play in several ways. If the objections are conducted in open court, the objection process emphatically flags for the jurors that there is something that one of the attorneys doesn’t want them to see or hear. They may be able to listen to the very evidence they will then be instructed to disregard, if it is ruled inadmissible.

If the objections are conducted in a bench conference, the same effect may apply. The theatrics of the courtroom could emphasize the secrecy if the attorneys approach the bench and speak in hushed voices about the “secret” evidence. A bench conference could trigger a double secrecy heuristic: the secrecy of the evidence itself, and the secrecy of the bench conference that they observe but cannot hear. (Or the  jurors may just tune out, regarding the conference as hyper-technical legal maneuverings.) 

Legal scholars such as Jeffrey Rachlinski of Cornell have written at length about heuristics within the legal context. For example, jurors do not appear to disregard information even if a judge asks them to disregard it. If one party asks for a certain amount in damages but the judge instructs the jury not to consider the amount, that amount still serves as an “anchor.” The anchor exerts influence regardless of the instruction to disregard it, pulling the award toward  the anchor for groups exposed to it. Groups with no anchor return very different damage awards. Professor Rachlinski has also written with Judge Andrew Wistrich and Chris Guthrie of Vanderbilt about whether judges can ignore inadmissible evidence that they hear; the answer appears to be “no.”

Under the concept of the secrecy heuristic, it seems possible that judges and jurors who hear inadmissible information and are instructed to disregard it may not only *not* disregard it but actually give it more weight. Jurors who know something is being kept from them may assign more weight to the gap in their knowledge. (If the word “insurance” arises at trial and then is hushed over by an objection, jurors might spend time in deliberations discussing whether to reduce a plaintiff’s award based on the likelihood of coverage. The role of insurance might seem even more important because they are not supposed to hear about it.)

The scholarship does not use the term “secrecy heuristic” in describing this effect but bears it out in different words: In the article on judges and limiting instructions, Wistrich, Guthrie, and Rachlinski cite practical advice from Keeton’s Trial Tactics and Methods: asking the judge to instruct the jury to disregard evidence “calls to the jury’s attention the relevance of the evidence to the very issue on which you are seeking to avoid their considering it.” They also cite a 2001 articleJury Decision Making: 45 Years of Empirical Research on Deliberating Groups, which found that limiting instructions are “associated with a paradoxical increase in the targeted behavior.”

The secrecy heuristic would help to explain the psychology of this paradox. When you instruct someone to listen carefully, but then to disregard certain information, the whole process is likely to reinforce their memory of that information and their assessment of just how important and valuable it really is.

Many thanks to Jeff Rachlinski of Cornell, and Julie Seaman and Paul Zwier of Emory for feedback on an earlier version of this post. For more background on cognitive heuristics and listening, here is an earlier series from Listen Like a Lawyer exploring cognitive biases and listening in the legal context.

Law practiceLegal communicationLegal skillsPeople skills

Halloween Special: Four Kinds of Scary Listeners

On this Halloween—or any average workday—you may encounter some ghoulish listening practices.

http://www.flickr.com/photos/gregerravik/9065470000/

While you may not be able to trick bad listeners out of their ghastly habits, you can always treat your own conversation partners by giving them your focus and empathy.

The Smartphone Vampire

Blackberry may be losing market share, but the proliferation of listeners who bail from conversations to look at their smartphones will outlast us all. The descendants of the original “crackberry addicts” are like eternal vampires sucking the blood of meaningful connection out of their conversations.

The Robot Programmed to Listen Actively

Active listening is an important technique that can become robotic if taken too far:

Client:       I’d like to get an update on my case.

Lawyer:    You’d like to get an update on your case. Yes, let’s do that because it’s very important to keep you updated on your case.

Client:       Right, how’s it going?

Lawyer:    You want to know how’s it going. It is going very well. In terms of the “how,” we are preparing a motion to exclude evidence. In terms of the “it,” we haven’t talked settlement with the other side yet, but with your permission can do so this week. And in terms of “going,” discovery has closed and the trial date will be set in the next month or so. How’s it going for you?

As Michael Nichols writes in The Lost Art of Listening, active listening fails when it’s a self-conscious technique:

There’s nothing wrong with active listening. Acknowledging what people say is part of the essence of good listening. The problem is that when listening is reduced to a laundry list of how-tos, some people make more of an effort to show that they’re listening than to actually listen.

The Listening Mask

Some people look like listeners. They act like listeners. They are skillfully camouflaged as genuinely engaged in the act of listening. But these outward indications of listening turn out to be part of a convincing listening costume. Bernard Ferrari, in his book Power Listening: Mastering the Most Critical Business Skill of All, calls them “Pretenders”:

You’d walk out his office feeling like a million bucks, won over completely by his knowing, empathetic smile. It might take a while, but eventually you’d realize he hadn’t acted on anything you said, even though he had given every indication he was processing what you had to say and was in agreement.

What lies beneath? Are they not paying attention, not understanding, or not motivated to listen? The listening mask makes it hard to know.

The Hostile Tape Recorder

As with the Listening Mask, no outward clues tip you off that your conversation partner may actually be a Hostile Tape Recorder. Talking and listening proceed as usual. But this person’s brain is not only a brain; it is also an audio recorder. You say something to this listener and there is an imperceptible “click” as your words are recorded.

Like a suspense film that shocks and thrills by bringing back the supposedly deceased victim from the first scene to deliver the climactic blow, the Hostile Tape Recorder can shock and dismay with the capacity to bring back exact words, in quotes, from the dead. Usually in nasty e-mails.

So on this Halloween, beware this parade of horribles. Feel free to share your own stories of the most hideous listener you’ve encountered in the comments below. Leave out the identifying details, but please share your horror stories of listening. And Happy Halloween. 

This article was inspired by Bernard Ferrari’s Power Listening. Ferrari describes several archetypes of poor listening. As indicated above, one is the “Pretender.”  There is the “Opinionator” who “listen[s] to others really only to determine whether or not [their] ideas conform to what the Opinionator already knows to be true.” And there is the “Perseverator” who “appear[s] to be engaged in productive dialogue” while actually “editing on the fly, fine-tuning what he is saying through constant reiteration.” Ferrari pigeonholes some other problem listeners; his book also offers a lot of good C-suite-type advice for effective listening. I recommend Power Listening and will explore it in more depth at a later (non-Halloween) date.

Photo credit: Flickr/Gregor Ravik/CC by 2.0

Law practiceLegal communicationLegal skillsPeople skills

Lawyers and biased listening (part 3)

Perception and decision-making are vulnerable to cognitive biases. Decisions based on listening are at least as vulnerable to bias as other forms of decision-making, if not more so. Previous posts in this series (here and here) have outlined the vulnerability of listening to bias and have addressed some of the most common cognitive biases. This concluding post highlights two more biases, how listening might play a role in these biases, and what lawyers can do to minimize their effects.

Duluth Anchor

1. For anchoring bias, prepare for impact and try “thinking the opposite.

A powerful cognitive bias is the “anchoring effect.” Anchoring is best defined through illustration:

A lawyer and client go to mediation after discussing a number that they would be willing to pay to settle. In the first round of the mediation, the other side has the first opportunity to offer a number. Its opening demand is ridiculously high and nowhere near what the lawyer and client had discussed. What is everyone in the room to do with that very large number?

The lawyer and client may start to worry that this opening number will influence the mediation. And the research on cognitive bias confirms that the lawyer and client are right to worry. The “anchoring effect” will tend to pull negotiations toward the number that any side puts out as the first “anchor.” One of several excellent law review articles discussing the anchoring effect is Blinking on the Bench: How Judges Decide Cases by Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich.

Hearing an anchor—rather than reading it in a written demand or brief—could exacerbate anchoring bias. The act of reading is often private; you can go in your office and close the door to read a demand letter and digest it. You can take time to marshal your own mental arguments against it, and the arguments of others as well In contrast in many situations where you hear the anchor, you are on the spot with a client and the other party. So the vulnerability to the anchoring bias may come not such from hearing the number but more from hearing the number in person, under pressure.

 SOLUTIONS

  • Be attuned to the physiological effects of “hearing the other side’s number.” Hearing the number may provoke body language in us as listeners that reveals our thought process. Knowing the power of the “anchor” could help lawyers to preemptively temper their own reactions. They may help clients do the same by preparing them to hear a large number and explaining strategies for dealing with the experience.
  • Fight an anchor with a dramatic scene: storm out of a negotiation to signal that the number on the table is unacceptable. This solution is straight out of Thinking, Fast and Slow. And it will sound familiar to any lawyer who has . . . stormed out of a negotiation to signal that the number on the table is unacceptable. (Part of the allure of the cognitive bias research is that it more fully explains and labels vulnerabilities and responses that we may have experienced without having a clear label.)
  • Purposefully brainstorm all arguments against the anchor. Kahneman points out that this strategy is helpful for managing one’s own thoughts about a potential anchor. It could also be used for persuading others such as mediators and judges that a number is not appropriate and should not be the anchor.

2. Reduce distractions and know your own level of expertise to reduce “availability bias.”

We are more vulnerable to certain biases when we are simultaneously engaging in another “effortful task,” according to Kahneman. This is the connection back to cognitive load: the busier our cognitive resources are, the more vulnerable we are to cognitive bias. Our overloaded critical-thinking skills take a break and let our intuitions do the work—along with our intuitions’ embedded biases.

The “availability bias” is one such cognitive bias. The concept is that our thought processes become skewed by how easy it is to recall certain information. If information is available, it seems more important and vivid and likely to happen again. That is why Kahneman and others complain about media coverage. If newspapers regularly run articles about lawyer misconduct, the availability of that information may influence the public to believe lawyer misconduct is more common than it really is.

Availability can distort thinking in more subtle ways, and it is exacerbated by cognitive load. For example, imagine a lawyer who managing emails at a baseline rate of 10 per hour. The lawyer receives one particularly concerning e-mail about a client’s document production. Putting that aside until there is more time to seek a solution, the lawyer begins conducting some light legal research on a statutory question. The first search returns 3,000 results based on a Google-like strategy requiring the lawyer to filter the results after the initial search. At that point, a colleague stops by to the lawyer’s office to ask, “Do you have a minute to talk about the Smith case?”

With this cognitive load as the context, there is a chance the lawyer’s estimate of success or failure on the Smith case will be affected by the availability bias. The lawyer’s ease of remembering cases like the Smith case may play a disproportionate role in the analysis. The lawyer’s most recent experience related in some way to the analysis in the Smith case may also distort the lawyer’s thinking.

In addition to flourishing under challenging cognitive conditions, the availability bias is greater in “knowledgeable novices,” rather then “true experts,” Kahneman found. Thus a lawyer with a handful of experiences in one area of law is likely to be more affected by how easy it is to think of experiences, as contrasted with an expert, whose depth of experience teaches otherwise. (Scholarship on the depth and reliability of expert intuition, such as  A Revised View of the Judicial Hunch by Professor Linda Berger of UNLV, is a hopeful counterpoint to the pessimistic tone of some cognitive-bias work.)

The availability bias may arise in the listening context in a few ways. The real-time flow of listening may not give a listener time to thoroughly process and critically examine some analytical questions. Distractions or cognitive load from the act of listening itself may exacerbate the bias. And talking about issues that are not in one’s true area of expertise could play a role as well. Biases could snowball as a lawyer who likes the client and is happy about a new matter (affect bias) offers a tentative answer and then seeks reasons to support it (confirmation bias), which are supplied in part by the ease of remembering one or two cases that are somewhat similar (availability bias).

SOLUTIONS

  • Monitor distractions and cognitive load, and preserve time for deeper focused analysis.
  • Distinguish your own areas of deep expertise from areas of moderate experience.
  • Develop strategies for handling questions that give yourself time and space for critical thinking before brainstorming a tentative answer. As Chris Bradley has written in the Lawyerist, it’s okay to say, “I don’t know.”
  • Remember that what you say to a client may trigger the client’s own availability bias. Thinking out loud with the client in the room could alter the client’s perception about the legal analysis in unintended ways.

Conclusion

Because listening involves perception and is so intertwined with thinking, it is vulnerable to cognitive bias. By understanding more about how cognitive biases affect their perceptions and their thinking, lawyers can take steps to counteract the effects of these biases. Reflecting on biases and taking steps to reduce them can help lawyers reach the elusive goal of being not just good, but gifted, at listening.

Client developmentLaw firm marketingLaw practiceLegal skills

What the rainmakers say about listening

When I talk to professional firms about developing their client relations skills and we go through the list of skills they could acquire or refine, most of them do not consider the skill of listening to very sexy, attractive, or even interesting. And yet, ironically, the most powerful, capable rainmakers in significant firms who have been through skills-training programs have told me that listening was the most important skill they acquired—by a long shot.

Gerald A. RiskinThe Successful Lawyer: Powerful Strategies for Transforming Your Practice 51 (2005).