Category: Law practice

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Lawyers and biased listening (part 2)

Reducing bias in listening is important yet difficult, as discussed in the first post on listening and cognitive bias. This post explores some of the most well-known cognitive biases and how they may impact lawyers’ listening, with some suggested solutions from the cognitive-bias literature.

Halo

The halo effect

Kahneman introduces Thinking, Fast and Slow with one of the most obvious cognitive biases:

“When the handsome and confident speaker bounds onto the stage, . . . you can anticipate that the audience will judge his comments more favorably than he deserves. The availability of a diagnostic label for this bias—the halo effect—makes it easier to anticipate, recognize, and understand.”

Kahneman’s example focuses on physical attractiveness. But the halo effect is not limited to attractive speakers.  The halo effect is in essence “[t]he tendency to like (or dislike) everything about a person—including things you have not observed.”

A halo effect can arise out of any trait. Based on one single attribute, whatever it may be, the halo effect biases the audience’s thinking toward everything else. As Kahneman points out, “the halo effect increases the weight of first impressions, sometimes to the point that subsequent information is mostly wasted” (emphasis added).

Lawyers trying to be unbiased listeners should guard vigilantly against the halo effect. One of its particular dangers for lawyers is “suppressed ambiguity.” Once the halo effect takes over, ambiguous information will be interpreted consistently with the halo effect’s bias.

Solutions?

  • Having a label for the halo effect goes a long way toward combatting it, Kahneman points out. So try to label what is happening. When you can recognize that your thinking is being affected by a bias such as appearance or shared affinity for a school or team or musical style, you can trigger your more analytical thought process to start “thinking slow.”
  • Manage how you gather information, to the extent possible. Information sequence can introduce a halo effect. Lawyers who filter cases with intake specialists are doing this, to an extent: studying a case on paper can help combat halo effects such as potential clients who present well but have weak cases and clients who are rough around the edges but have strong cases. The structure of an intake form itself can help combat the halo effect by forcing certain questions. As Kahneman recognizes, following a checklist is one way to battle the influence of bias.

Confirmation bias

The halo effect is closely related to confirmation bias: “our tendency, when receiving new information, to process it in a way that it fits our pre-existing narrative about a situation or problem.” Basically the confirmation bias distorts our thinking about the world to guide it toward the way we already think about the world.

Confirmation bias is discouraging to think about both politically and professionally. Confirmation bias “shuts down creativity” and shows up as “arrogance” and “bad listening.” For lawyers, a classic case of confirmation bias is not being able to recognize or accept that a formerly high-value case may not, after discovery, be as fantastic as it first seemed.

Confirmation bias also operates in small-scale contexts such as the flow of a conversation. When someone speaks up in a conversation with comments leaning one way or the other, that person’s confirmation bias may then shape the way she hears the rest of the conversation.

When you nod or cross your arms in response to information, your own positive or negative body language could affect how you continue to process the flow of information. As social psychologist Amy Cuddy has written and spoken about, body language can change not only others’ perception of your power status but also your own internal hormonal balance and behavior. (Others have noted the link between nonverbal behavior and confirmation bias as well, such as this Forbes article.)

Solutions?

  • Try not to let a large, complex decision become overly influenced by an initial, small decision in that area. One good solution is to seek out input from a group, where the members of the group have each assessed the same question independently. For example in valuing a case, asking a colleague to look at the facts and value it (without knowing your own assessment) would help check your work for confirmation bias.
  • Slowing down enough to consider the analysis while asking questions from different angles can help combat confirmation bias, as suggested here. Lawyers have the benefit of analytical patterns such as “What would the other side say?” and “How would a judge look at this?” But at the same time, these patterns of thinking could create a confirmation bias toward lawyerly pessimism. Examining the question from different angles also means asking whether an intuitive “no, this won’t work” could be turned into a “win-win.”
  • In conversations lawyers may want to hold themselves back from commenting too soon on a matter. Whether an initial comment is a hesitant “here’s why it won’t work” or an enthusiastic “yes!”, once the listener has chimed in with an opinion, confirmation bias will make it hard for the listener to interpret the rest of the conversation in an unbiased fashion.
  • Lawyers should also be vigilant about their own strategy for managing conversations. Taking over a conversation may be necessary to keep it relevant and efficient. But taking over a conversation also implicates the confirmation bias of the one managing the conversation. Information that doesn’t fit the dominant narrative may be suppressed.

Emotional biases

Certain cognitive biases have a stronger impact on those who are in a good mood. And it is stronger for people who are powerful or who at least feel powerful. The larger idea, as Kahneman writes, is that “[a] good mood is a signal that things are generally going well, the environment is safe, and it is all right to let one’s guard down.” When that happens, our critical-thinking skills relax somewhat, and the automatic aspects of our thought processes run the show.

These considerations are important in a number of listening situations. Having a face-to-face conversation with a trusted and longtime client may provoke positive mood and possibly also a feeling of power. The positive mood and feelings of power could conceivably affect the lawyer’s cognitive processes.

For example, when fielding the client’s questions about the probability of success in a future matter, the lawyer may rely more heavily on the ease of remembering other recent victories. The lawyer may also want to continue to appear highly effective, and thus may answer questions more quickly and a bit less cautiously.

Likewise, lawyers conducting fact investigations might consider whether they feel positively toward the witnesses they are interviewing. It can be hard to detect that a very likeable person is not being forthcoming. The “affect” bias—having positive feelings of liking toward something—can impact decision-making.

Solutions?

Although it is true that pessimistic thinking is less vulnerable to bias, the solution for lawyers is not to cultivate bad moods and negative thinking. The solutions to affect bias run along the same lines as suggested above:

  • Being aware of the affect bias can help lawyers use their people skills for friendly conversations, of course, without abandoning their critical thinking skills, of course.
  • Using tools such as checklists can help insulate perceptions and decision-making from bias.
  • Delaying answers to questions raised during a friendly conversation can preserve time for slow, careful thinking.

Conclusion

The biases discussed above (the halo effect, confirmation bias, and affect bias) deal with perception and liking, such as liking your own beliefs and the people you’re dealing with. A third and final post in this series will address some additional cognitive biases that can impact lawyers’ analysis and listening:

  • the “anchoring effect,” which occurs when someone offers up the first number in a negotiation, thus anchoring further talks around that number; and
  • the “availability bias,” which distorts our thinking based on the availability of information in our working memory.

As always, please share your thoughts in the comment box or through social media or e-mail. How have you seen cognitive biases affecting the work of lawyers in their role of listeners or otherwise? How have you confronted the impact of these biases?

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Lawyers and biased listening (part 1)

Malcolm Gladwell has suggested that gifted listening means listening without bias. If that is the case, then to be better listeners, lawyers should simply eliminate their biases, right?

Reducing bias turns out to be easy to say and very hard to do. This post explores some basics of how bias works, and introduces why decision-making within a listening context—as opposed to reading—may be more vulnerable to bias. Two future posts will address specific types of biases, how they may affect listening, and methods for reducing bias.

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1.  Conscious bias is bad, of course, but it is just the tip of the cognitive iceberg.

Bias affects our thinking and our listening, even when we don’t choose to be biased or consciously feel biased. The psychological term for subconscious biases, or distortions in our thinking, is “cognitive bias.”

Exploring the operation of numerous ingrained, subconscious biases is at the heart of Nobel Prize-winner Daniel Kahneman’s work, which he collects in his wonderful and challenging book Thinking, Fast and Slow (public lecture here beginning at 6:00 minutes after introduction).

As Kahneman explains, an unexpectedly large portion of our mental activity is automatic and running outside of conscious thought. Our mental processes are vulnerable to a series of cognitive shortcuts that shape and at times distort how we perceive information and make decisions.

For example, our thinking is biased toward:

  • what we already believe;
  • what we can easily remember; and
  • what we “like” in a general sense.

These biases are difficult to combat because they are so deeply part of how we think. Thus the first key to being a less biased listener is to understand there is more to it than just generally declaring: “Bias is bad, so now I will listen openly and without bias.”

2.  Listening may be particularly vulnerable to cognitive bias.

Listening is deeply intertwined with thought. Therefore it is necessarily afflicted by bias as well. Indeed, bias may actually be more pronounced when a person’s information is coming in via listening. This is because listening can be so cognitively challenging.

The cognitive challenge of listening arises in part from the fact the listener is largely at the mercy of the speaker. You don’t get to choose how fast and when to get the information. To perceive and comprehend the information, you must direct your attention at the speaker, interpreting the message in context and in real time. If the speaker goes too fast, you can’t rewind; if the speaker goes too slow, you may become distracted and edgy. Psychological research does seem to support the claim that listening imposes a high cognitive load: “the transitory nature of auditory information may impose a heavy extraneous cognitive load that interferes with learning.” Jase Moussa-Inaty et al., Improving Listening Skills in English as a Foreign Language by Reading Rather than Listening: A Cognitive Load Perspective, 26 App. Cogn. Psych. 391, 392 (2011).

Listening—at least in person—also brings in a raft of information beyond the content. The speaker’s voice, body language, and physical appearance all send signals to the listener, sometimes competing with the actual content of the message. Social cues from other listeners may send signals as well, if the listener is one of a group.

Reading is a useful contrast: A reader can slow down, take a break, or write a reaction on the page. And the reader generally does see how the message affects other readers, at least not simultaneously while reading. (It is interesting to note that social reading such as “popular highlights” in e-books is spreading to legal research.)

Cognitive load matters so much because it makes decision-making more prone to bias. A task with high cognitive load is very taxing on the brain. As Kahneman’s work has proven, our critical-thinking skills can be powerful, but they tire easily under a cognitive load. When that happens, our intuition—walking hand-in-hand with our biases—takes over.

Therefore, if listening imposes a high cognitive load, then decision-making within the context of listening is vulnerable to cognitive biases.

Two more posts in this series on cognitive bias and listening will explore specific biases within the context of listening. They will try to suggest ways to combat cognitive bias, although even a genius such as Daniel Kahneman says that fighting cognitive bias is just very hard to do.

And a large caveat to this series: the main point here is not that listening is so vulnerable to bias that lawyers should avoid it whenever possible, opting instead to exchange letters and e-mails. Reading has its own vulnerabilities. Just as one example, if you read a counter-argument in a brief, all you will see are the words that have been crafted to make it look strong. Confidence (or lack thereof) and the client’s commitment to hold fast (or lack thereof) will not be perceptible. At a negotiation, mediation, or trial—or even in a short phone call—nonverbal cues will present a fuller picture.

Please do comment and share further with more information about cognitive bias and listening. Whether you’re a communications scholar, a psychologist, or a common-sense observer of the human condition, please share your thoughts and suggestions for how lawyers can listen in a less biased and therefore more effective way.

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Listening to yourself speak

With the beginning of the new Supreme Court term and the opening of moot court season in law schools, this is an opportune time to study techniques for listening to yourself. By recording yourself giving a practice speech or oral argument and then studying the tape, you can greatly improve your effectiveness as a speaker.

But watching yourself speak can be challenging. First, there is the hurdle of . . . just watching yourself speak. For many, it’s a painful experience. If you can get past the discomfort, forcing yourself to watch tape can reveal distracting unconscious behaviors that you can then begin to curb.

The analytical content of a presentation may be more difficult to deconstruct by watching tape. Seeing your nonverbal behaviors on tape may prevent you from focusing on the content. And hearing your own speech again may actually reinforce the content in your mind, rather than helping you recognize gaps and weaknesses.

To listen to yourself and engage deeply with your own content, you need to listen specifically and critically. One innovative and powerful method for doing so is demonstrated in a wonderful Brain Pickings post here. In the post and embedded video, presentation guru Nancy Duarte breaks down Martin Luther King’s “I Have a Dream” speech. Her visual analysis deconstructs the speech’s rhythm and rhetorical components. The post and Duarte’s embedded videos are well worth your time for so many reasons.

For lawyers working on a particular speech or oral argument or presentation, Duarte’s methods could be extremely useful. To listen to yourself using Duarte’s method, consider using audio as she does. This eliminates the distraction of seeing yourself. And it frees up your brain to think about the key issues she is focusing on: the segments and breaks in the speech, and the type of content delivered at different times.

Listening to yourself speak

1. First, find the natural breaks in your presentation.

Working from the transcript of your practice presentation, insert hard returns where you paused. This technique reveals the shape of what you are saying. Duarte organizes Dr. King’s speech on a timeline running across the page and inserts the breaks vertically. But you could do it horizontally on a regular typed page to obtain many of the same benefits.

This method by itself can help you hear whether the speech on paper is actually appropriate in spoken form. If you have an overwhelming eight-sentence paragraph in your draft speech, you’re going to have to insert more breaks. This method also can help you hear whether the pauses are coinciding with what you want to emphasize—or, as is sometimes the case, you are hesitating to pause at all.

2. Code your content, and examine proportions and patterns.

The second step in Duarte’s method is to color-code the material to show its proportions and patterns. Duarte uses a coding system appropriate for studying Dr. King’s speech within the rhetorical context of the civil rights movement. Lawyers using Duarte’s method to work on an oral argument or CLE presentation would obviously want to modify the color-coding system to fit the situation. The content you would code for varies by context, but here is a possible idea for coding a practice opening statement:

  • Duarte coded repetition in light blue. In listening to an opening statement, a lawyer might use light blue to code the theme of the case. (Ideally there would be some repetition of the theme. This method would reveal how often and when the theme cropped up.)
  • She coded metaphors and visual words in pink. A lawyer might use pink to code vivid descriptions of the testimony to follow.
  • She coded songs, scriptures, and literature in green. A lawyer might use green for cultural references (although whether to even use cultural references in a jury setting is a topic for another blog).
  • She coded political references in orange. A lawyer might use orange for legal standards and references to the role of the jury.

Duarte appears to have used some sophisticated software to generate the timeline and graphic components of the speech. But with a transcript and a simple word-processing program that allows text highlighting, lawyers could apply the same method. Speech-to-text applications such as Dragon Dictation could make this process even easier.

The benefits of Duarte’s method are not limited to speeches and formal presentations. Lawyers and law students practicing for oral argument could apply the same method to break down the way they are answering questions and managing the argument:

  • Are your answers transitioning from defensive content into more positive, affirmative arguments? [Color-code red for defensive statements and green for affirmative statements.]
  • Are your answers bringing in legal support? [Color-code yellow for facts and green for law.]
  • Are your answers lingering too long on answers or, conversely, are they so concise as to seem clipped or not fully supported? [Color-code orange for the answer to the question and purple for the return to the main argument.]

[Aside on the topic of writing: Breaking down your writing through color-coding for specific content is just as effective when the writing is intended to be read, rather than spoken. Mary Beth Beazley popularized this method for teaching legal writing in The Self-Graded Draft: Teaching Students to Revise Using Guided Self-Critique, available from the Journal of the Legal Writing Institute here. Duarte’s presentation on “I Have a Dream” shows this type of method is not just for beginners confronting a new genre such as “IRAC.” It is revealing and productive for the most sophisticated writers and speakers among us.]

Of course only the rare and gifted orators can even come close to the achievement of “I Have a Dream.” But everyone who prepares and delivers speeches and oral arguments can benefit from practicing and really listening to what that practice reveals. We can then critically examine what we are doing and how to make it better.

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Listening to children: practice pointers from an expert

Listen Like a Lawyer welcomes guest blogger Karen Worthington, a writer, consultant and children’s policy attorney.

Writer, consultant, and children's policy attorney Karen Worthington

Karen Worthington

A recent verbal exchange with my five-year-old ended like this:

Impatient mother: “We are going to be late for practice. I told you three times to pack your snack and water. Didn’t you hear me?”

Unflappable daughter: “I heard you, I just didn’t listen.”

My daughter’s statement both captures why miscommunication is so frequent in our lives and illustrates a key difference in how young children and adults communicate. Young children live in a world of concrete concepts. To them, to “hear” is to know there is a sound going on around them. To “listen” is to accept and process information that is being conveyed to them. Listening and hearing are two distinct actions and listening is not always a subset of hearing.

Truly listening to children is one of two things attorneys must do to effectively work with child clients. The other is understanding child development. Although child development is not a class found in any law school, lawyers working with children and families cannot effectively communicate with or build a case involving a child without understanding where that child is developmentally and how that impacts the issues in the case.

What is a child?

In the legal world, a child is a person who is not yet a legal adult. For most purposes, the age of adulthood is eighteen, which means that a “child” could be seven days or seventeen years old. Because of the wide range of developmental and chronological ages and abilities falling under the legal umbrella of “child,” when discussing how to work with children it is helpful to group children by developmental ability.

The developmental stages of childhood are generally categorized as infancy, toddlerhood, early childhood (ages 3-6), middle childhood (ages 7-11) and adolescence. While the exact ages and stages may vary among developmental experts, the fact remains that the skills and approach needed to listen to a child vary according to the child’s developmental age and stage. Each stage includes social, emotional, cognitive, motor and other changes that affect how a child interacts with (i.e. communicates with) his or her world. Furthermore, developmental theory provides only a framework for working with children. Each child is unique, developmental stages are not linear, and a child’s cognitive abilities may be affected by trauma, fear, hunger, excitement, tiredness, medications, hormonal changes, the setting in which the conversation takes place, and many other factors.

How to listen to children

As with any other client (and perhaps more so than most clients), attorneys need to spend time with and get to know their child clients. Listening to your child client in different settings at different times will teach you how to best communicate with that child. A preverbal infant is just as capable of carrying on a conversation as a 15-year-old, if you know how to “speak” and “listen” in the infant’s “language.” Following this post is a list of resources to help lawyers communicate with children of different ages.

There are some general guidelines that apply across the stages of childhood. First, establishing rapport with a child is essential in a way that it is not with adults. Most of the time, adult clients seek your services because they want your help with a problem and they understand the attorney-client relationship. In contrast, most child clients encounter you because of bad things that have happened in their lives and almost always, they did not seek you out–you were assigned to work with them by some other adult. Even when you represent youth accused of breaking the law, which is most analogous to a situation in which you would encounter an adult client, the youth’s perception of your role is not likely to be similar to an adult’s perception of it.

Connect with children

Rapport is essential because broadly speaking, young children will want to be agreeable and please you and adolescents are likely to distrust you. Therefore, young children need to be comfortable enough with you to disagree or correct you rather than always giving the answer they think you want to hear. Older youth will need to be comfortable enough to share relevant information with you and not just tell you what they think you would want to or should know. All ages need to feel comfortable enough with you to share information they may feel is embarrassing or shameful.

Understand the child in context

A second general guideline is to speak the child’s “language.” Learning the child’s language comes in part from understanding child development (such as when children can understand abstract concepts, compound sentences, time, space and size comparisons, etc.) and in part from understanding the world in which the child lives–physically, culturally, socially and emotionally.

To understand a child in the context of her environment you need to see the child in her home or school and you probably need to observe interactions with important people such as parents, siblings or peers. You also need to be able to talk about what is important to the child. If you work with tweens and adolescents, read some magazines targeted to that age group, find out what music is popular with the teen and his friends and listen to it. Know something about what the youth is interested in, whether it is college basketball, pro football, the latest dance craze or the newest viral video. You probably can’t bill for watching music videos, but the improved ability to relate to your client is a huge payoff.

Don’t just talk; do something

A third general guideline applicable to most youth is to interact with them rather than interrogate them. Instead of a traditional one-on-one conversation which, for lawyers, often includes a desk and taking notes, it is best to engage in an activity with a child. For young children that might be coloring or playing with trucks or dolls, for older youth it might be playing a card game that doesn’t require much concentration, swinging at the park or walking around the neighborhood.

Having something to focus on other than an adult asking questions tends to make a child more comfortable. For many children, the only time they sit and talk to an adult without doing something else is when they are in trouble. Because of the setting in which you talk with a child, you may not be able to take notes, so you need finely honed listening skills.

Be honest; be real

A fourth general guideline is to be genuine and keep your word. Children have a sixth sense for insincerity and a finely attuned BS-o-meter. Develop rapport but still be yourself. Maintain boundaries. You are the responsible adult in a relationship where there is a power imbalance. You are their lawyer not their friend. Don’t overpromise and always follow up. Be clear and do what you say you will. Most of the time children have lawyers because other adults have failed them. Do not be another adult who lets them down.

Listen with your heart as well as your ears

A final piece of advice is be prepared to be surprised. When we allow ourselves to listen to children, we are likely to be surprised by their wisdom. Children’s insights and observation can be biting in their honesty. Appreciate the profundity in simple statements such as “I heard you but I didn’t listen to you.”

Resources

Click on the resource title to open the URL.

ABA training video, “Interviewing the Child Client: Approaches and Techniques for a Successful Interview 

ABA Center on Children and the Law

CASA of Arizona online training segment, “Interviewing Children”

National CASA article excerpt, “Interviewing Children” (PDF)

NJDC training module “Talking to Teens in the Justice System: Strategies for Interviewing Adolescent Defendants, Witnesses, and Victims”

“Handbook on Questioning Children: A Linguistic Perspective, 3rd Edition,” by Anne Graffam Walker, et al, published by the ABA Center on Children and the Law (July 2013)

Author bio

Karen Worthington is a writer, consultant and children’s policy attorney who has spent the last 19 years working to improve children’s lives as a policy wonk, educator, author, child law and policy center director, nonprofit leader, legislative advocate and children’s law expert. Her consulting website is http://www.karenworthington.com and her writing website is http://www.lightningboltwriting.com.

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Guest post on Legal Productivity: 5 Benefits of Effective Listening

Effective listening is crucial to establishing rapport with clients, witnesses, and anyone, really. But effective listening also contributes to lawyers’ analysis, strategy, and future workload in several concrete ways.

Effective listening helps lawyers find the right narrative for the facts, avoid nasty surprises, and generate more work–in a good way. Read more in my guest post at the Legal Productivity blog here.

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Updated listening resources

This week’s end-of-the-week update highlights Listen Like a Lawyer’s growing list of listening resources. The list is here, and can always be found on the left panel of the blog in the menu item “Listening Resources.”

The updates include several articles from the Harvard Business Review and the HBR Blog, as well a number of additional books on listening. My favorite title, I confess, is Rule #1: Stop Talking!

There are some very valuable insights in these collected resources, and I would be grateful if blog readers suggested more. The resource list will continue to grow. And likewise, Listen Like a Lawyer will continue to explore ideas about listening, placing a particular focus on the needs of lawyers and other legal professionals, as well as law students and professors.

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The Lawyer’s Ethical Duty Not to Listen

Lawyers have a duty to listen to their clients, as discussed in an earlier post. Lawyers also have a duty not to listen to certain information.

Do not listen to a person represented by another lawyer.

A lawyer may not listen to information provided by a person represented by counsel, as set forth in Model Rule of Professional Conduct 4.2. In short, communication with a represented person is a terrible idea! The rule itself says that in representing one client, a lawyer “shall not communicate about the subject of the representation” with another person represented by counsel. (Exceptions apply when the other person’s lawyer has consented, or when a court order or other law allows the communication.)

Listening includes having other people listen.

Lawyers may not circumvent the prohibition on communicating with represented parties by having non-lawyers take over the communication. Rule 8.4(a) defines professional misconduct to include violations done “through the acts of another.”

Listening is still listening, even without asking a single question.

The prohibited acts of listening include completely passive listening as well as active questioning. In In re Howes, 940 P.2d 159 (N.M. 1997), the New Mexico Supreme Court upheld sanctions against a prosecutor for listening to several statements by a criminal defendant without his defense counsel’s knowledge. The prosecutor did not initiate the communications and never asked a question during any of these statements. He merely “listened to everything defendant had to say.”

The New Mexico Supreme Court roundly rejected the idea that this was not communication: “To argue that one does not violate [the precursor to Rule 4.2] if one does not ask questions or impart information borders on sophistry. People do not compromise their positions or waive their defenses by listening to an attorney; they do so by talking while the attorney listens.” The attorney, who was quoted by the court as lacking remorse for his actions, was publicly censured and ordered to pay costs.

Unethical listening isn’t limited to dealing with represented parties.

Inappropriate listening could subject a lawyer to discipline under Rule 8.4 even if it does not involve communications with represented parties. Rule 8.4 defines professional misconduct to include conduct “involving dishonesty, fraud, deceit, or misrepresentation.”

For example, in In re Matter of Schwartz, 599 S.E.2d 184 (Ga. 2004), a lawyer accessed and listened to voicemails at the firm where he no longer worked. He went on to randomly delete some of them. The lawyer admitted violations and was suspended under a voluntary plan, which the Supreme Court of Georgia affirmed. The reasoning in the case did not separate out the wrongfulness of the act of listening to the voicemails from that of randomly deleting some of them. The court found suspension is generally appropriate when “a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal profession.” This case is among those listed in the ABA Annotations to Rule 8.4.

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A “KISS Principle” for Listening

This post continues Listen Like a Lawyer’s end-of-the-week tradition of sharing short links, images, and other concise content about listening.

In the college textbook Listening: Process, Functions, and Competency, authors Debra Worthington and Margaret Fitch-Hauser present brief advice from a trial consultant about listening. “For attorneys, one of the key principles to listening well begins with setting up an atmosphere conducive to the clients’ believing they are listened to,” says Diane Wyzga, trial consultant and founder of Lightning Rod Communications.

To do the job of listening to what clients want or need to say, one phrase is particularly helpful:

“Tell me more.”

This, Wyzga says, is the “most invaluable statement you can ever use to encourage someone to speak.” There is no need to craft strategic questions, she says, and using this simple phrase “allows the client’s narrative story to emerge.”

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Trial lawyers: five key contexts for listening

Effective listening has universal themes, such as the role of focused attention. But much of listening is also context-specific. Listening in a public meeting is obviously different than in a one-on-one conversation.

Trial lawyers face at least five distinct listening contexts. Each presents different listening opportunities and challenges. Listen Like a Lawyer is grateful to share this Q&A on listening contexts with trial lawyer, mediator, and trial-advocacy instructor Jay D. Brownstein.

brownstein-photo-L

LLL: Jay, thank you for your time. What do you think are the most important contexts that trial lawyers need to be thinking about when they think about their listening?

JDB: Generally speaking, there are several areas where trial lawyers need to effectively listen:

  • First, when speaking with potential and existing clients.
  • Second, in witness examination, both in deposition and at trial. As lawyers, we are often intent on covering a predetermined outline of topics and questions. But effective advocacy requires us to carefully listen and respond to what the witness is saying.
  • Third, communicating with judges at the trial and appellate level.
  • Fourth, communicating with juries. In voir dire, you listen intently to potential jurors’ answers, looking for clues as to their beliefs and predispositions. In trial, you must “listen” to nonverbal communication from jurors (as well as witnesses and the judge).
  • Fifth, mediation, an important tool for conflict resolution. It has become a necessary aspect of litigation and requires strong listening skillls.

LLL: What are the listening challenges in conversing with a potential client?

JDB: The initial client interview can be especially challenging because the client and attorney have somewhat different goals. The client wants to tell her entire story, while the lawyer is trying to quickly determine if the client has a case worthy of further exploration.

In telling their stories, clients usually don’t know what facts are important. They frequently spend time telling you things that may have little legal significance, while leaving out truly important details. The lawyer must carefully listen to what the potential client is saying (or not saying), but also guide the conversation to facts important to the legal claim analysis.

So there is a constant tension between allowing the client to talk (and being professional and courteous), and quickly learning the necessary facts to make a case determination.

LLL: How does the listening task change when your potential client becomes your actual client?

JDB:  Throughout a representation, it is critically important to maintain effective communication with your client, which always requires listening. Clients often try to tell us things that can be very important to a successful outcome of their case, although we may not always be receptive to it. For example, to effectively advocate pain and suffering in a personal injury case the trial lawyer needs to fully explore and come to understand how the client’s injuries have affected them.

In all cases, it is critically important to develop and maintain a relationship of trust with the client that can only occur through effective listening. If clients are to entrust us with their most important confidences—which can be crucial to achieving a successful result in their case—they must know that we are listening and trying to truly understand them and their circumstances.

LLL:​ I saw a statistic from one state’s court system that only 7 percent of cases go to trial. That means a lot of them settle, and the mediation process plays a major role in settlement. How can lawyers use listening to help their clients during mediation?

JDB:  Over the past 10-15 years, mediation has evolved to become the primary means of resolving cases short of a jury trial. Available statistics suggest that a high percentage of mediated cases settle either at mediation or shortly thereafter.  For example, the EEOC reports that in 2012 over 76% of its mediated cases settled within 100 days after mediation. For clients and their lawyers, mediation is often the last best chance for a certain resolution without putting their fates in the hands of strangers (juries and judges). Lawyers should not only prepare themselves for mediation as though preparing for trial (by reviewing all discovery, depositions, research on key legal issues, etc.), but they must also prepare their clients.

This preparation involves not only explaining the mediation process, but also listening and openly talking with clients about their expectations. It does little good to tell a client what she can expect in a mediation without also helping her to set goals and manage her own expectations. Listening plays a key role in this – you must first learn and understand how a client thinks before attempting to help modify that thinking and allow for the best chance of a successful mediation.

LLL:  If the dispute lasts long enough, at some point, the lawyer will take and defend depositions and eventually examine witnesses at trial. What do you think are the keys to effective listening in the context of witness testimony?

JDB:​  Particularly in early years of practice, many lawyers prepare for depositions and trial testimony by developing extensive witness outlines covering numerous topics and containing detailed questions (sometimes including the expected answers). But as trial lawyers well know, testimony never goes exactly as planned or scripted, especially in the case of direct testimony. Learning to get the witness talking, listening to what the witness actually says (as opposed to what we expect or hope to hear), and following up to the actual responses, is critical to effective examination. This is something that, like many experienced practitioners, I am constantly aware of and seeking to improve upon.

The more an examination, even cross examination, is like a true conversation with each side listening and responding to the other, the more effective you can be at eliciting key points (good and bad) you want the jury (or judge on summary judgment) to hear and remember. All witnesses can surprise and frustrate a trial lawyer; the key is to listen and understand what you can and can’t do with a witness.

LLL: For the trial lawyer, a very important audience is the trial judge. How can lawyers use listening to better understand the trial judge?

JDB:  All trial judges are busy with heavy case dockets, and appreciate brevity and clarity. On any given civil motions calendar there could be 40 to 50 cases. The judge needs to know what type of matter is before her (discovery motion, procedural issue, etc.), what she is being asked to do, and why. Judges will generally tell you what they need to understand or hear in order to issue a ruling.

The most skilled lawyers I have observed listen carefully to questions from the bench, whether directed to them or opposing counsel, and react by instantly tailoring their argument to the point or points the judge seems most interested in or confused by. Most importantly, the best lawyers don’t waste the court’s time with unnecessary argument. If a judge indicates, directly or indirectly, that they likely agree with you, acknowledge it and move on. If there is nothing further to say, stop talking and sit down.

LLL:When cases do go up on appeal, listening during oral argument is another intense experience. What are the listening challenges of oral argument, and how do you deal with them?

JDB:  ​In appellate advocacy, the same principals apply but with even greater force. Accomplished appellate lawyers say that the best appellate arguments are like living-room conversations, except that the advocate’s window of opportunity to persuade is narrow and can easily be lost if the lawyer does not carefully listen and directly respond to questions.

Usually, a question from the bench is much more than an opportunity to expound on an issue or portion of your prepared argument. It tells you exactly which part of your argument is most troubling to the court or to the particular judge with the question. And it gives you the chance (in 60 or 90 seconds) to persuade that judge, and perhaps others, to your position.

Preparation is key, as you must anticipate and be ready to immediately give your best response to a myriad of issues and related questions from the bench. But absent insightful listening, the chance to persuade will be lost.

Jay, thanks so much for sharing your thoughts with Listen Like a Lawyer.

EthicsLaw practiceLegal communicationLegal skillsPeople skills

Profile of a great listener—and what lawyers can learn

“Listening well is a gift.” Malcolm Gladwell explores the gift—and curse—of listening in this BBC profile of Vietnam consultant Konrad Kellen. The profile has some fascinating and sad insights into 20th-century politics and war. But the main point is to explore Konrad Kellen’s abiding gift as a listener. Although Kellen’s work was in public policy, his listening gift has something to teach lawyers as well: he listened without a biased ear, and he listened to all the relevant information in forming his analysis.

Setting biases aside, or at least trying to

Kellen was effective as a listener primarily because he could set aside his biases. Gladwell describes Kellen’s rare ability to really understand field interviews with North Vietnamese during the Vietnam War. He didn’t filter the information through a bias of predicting U.S. victory, as did other policymakers who ultimately carried the day.  This prevailing bias not only clouded policymakers’ understanding of the data but also blocked them from accepting what Kellen learned from really listening to the North Vietnamese.

Listening without bias is really crucial for good lawyering. Lawyers’ bias can interfere in many forms, from bias in favor of the client, to bias in favor of the status quo, to bias in favor of personal benefit or avoiding embarrassment or risk. Truly effective listening requires accurate and objective interpretation of the message being heard. In this way, effective listening is difficult to distinguish from critical thought itself.

Listening deeply and thoroughly

Related to Kellen’s lack of bias was his ability to listen to all of the information and then synthesize it. He didn’t stop listening when he heard what supported the prevailing view, as Gladwell describes his work with extensive North Vietnamese interview transcripts. And Kellen was able to interpret seemingly conflicting statements together in a way that produced a deep understanding of the subjects’ real mindset toward the war.

Likewise, lawyers certainly should listen comprehensively, recognizing the relationships among discrete bits of data within the message. The press for efficiency and the lure of confirmation bias both can interfere with effective listening. Although lawyers must work efficiently, effective listening also means listening thoroughly and persistently, at least well enough and long enough to be able to hear conflicting information when it exists.

The curse of effective listening?

Gladwell ultimately suggests that Kellen’s effective listening was something of a curse. Gladwell points out the “great irony” that “[t]he better listener you are, the less people want to listen to you.”

This idea of listening as a curse seems less applicable to lawyers. Of course, knowing something that others can’t or won’t appreciate—whether gleaned through listening or otherwise—is difficult. Most lawyers will probably face that situation during their careers.

But as a sweeping statement, it does not seem to ring true that lawyers who listen well are less likely to be listened to. Indeed, just the opposite seems more likely in the small-group dynamics common in law practice. By deeply listening to the messages that clients, judges, mediators, opposing parties, witnesses, and others provide, lawyers can make themselves far more effective when they do speak up for their clients.