Category: Law practice

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Judged by our listening

Effective listening is just one of many components of being effective, overall, as a communicator and as a professional. By being effective listeners, lawyers can improve how people perceive their overall communication effectiveness. Professor Neil Hamilton’s excellent law review article Effectiveness Requires Listening: How to Assess and Improve Listening Skills delves into some ideas on how this is so.

Professor Hamilton begins by noting the “exceptional opportunity” available to lawyers and law students who enhance their listening skills. Effective listening can assist students with academic performance and practicing lawyers with client relationships. Analytically, effective listening enhances problem solving and deepens understanding of a situation. Beyond that, it builds trust. So listening is a win-win-win: competitively, analytically, and relationally.

Next Hamilton quotes a study linking listening to overall effectiveness–not just in communication, but period: “[P]eople whom others perceive as the most effective individuals have strong listening skills” (citing Kerry Patterson et al., Crucial Conversations: Tools for Talking When the Stakes Are High (2002)). Patterson’s work revealed that managers judged as effective were able to encourage others to talk about high-stakes topics and to get all the issues out in the open. Part of their effectiveness was a product of  listening to various points of view before jumping into the fray.

This particularly passage in Hamilton’s article called to mind, for me, the work of Nobel Prize winner Daniel Kahneman, most recently collected in his book Thinking, Fast and Slow (New York Times review here). Kahneman, along with Amos Tversky, found that people apply a wide variety of “cognitive heuristics”—in other words, psychological shortcuts—to guide their decision-making.

These heuristics play a particularly large role in making tough decisions involving many complex factors. For example, a lawyer might be afraid to put a client on the stand when that client has an admissible prior conviction because, the lawyer would justifiably think, the jury might substitute its overall complex decision about the facts of the case for the easier decision about whether the client was a worthy person, in light of the prior conviction.

So in the context of listening, what if people use listening as a heuristic for their judgments about someone’s effectiveness as a communicator? What if people use listening as a heuristic for judgments about someone’s effectiveness, period? Both could be true.

A speaker can observe a listener’s behavior and from the outward behavior form a judgment about that person’s listening. The judgment could be wrong; a distracted-looking person might actually be a better listener than someone who sits still but is really thinking about what to say next. Yet the outward behavior sends a message that nonetheless triggers a cascade of thoughts and judgments in the speaker’s mind.

Lawyers wishing to make a good impression with clients, judges, and others should keep this possibility in mind. By showing themselves to be good listeners, lawyers can likely ratchet up others’ beliefs about their overall effectiveness. Conversely, by appearing to be poor listeners, lawyers might be compromising more than they think. (Thus a lawyer’s slip in listening to a client might call for an immediate apology to try to counteract the client’s unfavorable judgment, which would likely be forming as quickly as a summer pop-up storm in Atlanta.)

There is something about listening that, I believe, makes it a particularly likely candidate to serve as a cognitive heuristic for effective communication. Speaking is the other significant component of interpersonal communication. (Let’s set aside writing for now.) Public speaking is notoriously difficult and intimidating. So even if a lawyer begins a presentation on a tentative note, the audience’s own experience might soften any judgment about the lawyer’s overall effectiveness. You may have heard someone described along these lines: “He’s not a great public speaker, but he does a good job.”

But listening is different. I have never heard someone say, “She’s a lousy listener, but overall she does a nice job.” Not being listened to provokes frustration if not anger. This would seem especially true for audiences with high expectations of being listened to, such as clients and judges.

And listening seems pretty to evaluate, therefore making it a good candidate for the cognitive heuristic called the “substitution effect,” or “attribute substitution.” Even if a client feels at a loss to evaluate a lawyer’s holistic legal acumen, that client can substitute an easier decision: does the client feel that the lawyer effectively listened?

Thus listening would seem to have all the ingredients of a heuristic in the making, especially for lawyers. This observation brings us back full circle to Hamilton’s article exhorting the value of effective listening: “[P]eople whom others perceive as the most effective individuals have strong listening skills.”

Law practiceLegal communicationLegal skillsPeople skillsUncategorized

Validating others by listening

Today the Farnam Street blog—which has a fascinating e-mail newsletter I highly recommend subscribing to—collected and released its top posts for July. One of them was “Ten Techniques for Building Quick Rapport with Anyone.” The post is a summary and review of Robin Dreeke’s book It’s Not All About Me: The Top Ten Techniques for Building Quick Rapport with Anyone.

This book looks like something this blog could explore again more fully in the future. For now, here’s what Farnam Street had to say about the book’s coverage of listening. It’s one of the best ways to build rapport by validating the person you’re talking to:

Just listening to someone can produce amazing results. Where we run into problems is keeping our own thoughts, ideas, and stories out of the conversation. [Quoting the book:] “True validation coupled with ego suspension means that you have no story to offer, that you are there simply to hear theirs.” And there is another benefit. When the focus is on the other person and we’re not anxious to tell our own story, we also tend to remember the details. We’re mindful.

Law practicePeople skillsProfessional responsibilityUncategorized

What it sounded like at the bar exam

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This photo was taken at the Georgia bar exam in July 2013—but not much has changed in five years.

My own transition from the bar exam to law practice felt jarring. The solitude of studying and taking the exam gave way to a cacophony of interpersonal conversations. My listening “muscles” were atrophied, to say the least.

For those going immediately from the bar exam into practice–as well as those now headed into more job interviews–what strategies can they use to handle this transition? Mental rehearsal comes to mind: imagining situations involving in-depth listening and conversing, and then imagining specifics on what to do.

In the transition period, when new lawyers have a choice on how to communicate with family members, it might be worthwhile to replace some texting with phone calls, at least temporarily. (See this article from the Wall Street Journal on employees who keep in touch with parents throughout the work day by texting and chatting.)

It may be helpful to review a listening checklist (generally on preparing to listen or specifically for taking assignments) before going into a meeting or interview.

What other strategies could help new lawyers quickly “bridge the gap” to effective listening?

This post has been updated since it was originally published in August 2013.

Law practiceLegal communicationLegal skillsPeople skills

The richness of sound

Listening gets a bad rap. A famous statistic about listening is that people remember 30 percent of what they hear, 50 percent of what they see and hear, and 80 percent of what they do. This statistic may be unsupported or based on apocryphal sources, but the gist is consistent with the wisdom of Confucius: “I hear and I forget. I see and I remember. I do and I understand.”

Actually, the world of sound provides richer information than sight in many ways. Auditory guru Seth Horowitz outlines the comparative advantage of sound in his entertaining book The Universal Sense: How Hearing Shapes the Mind. As Horowitz writes, what we take in from sight is certainly a rich vein of information: “Vision is a relatively fast-acting sense that works slightly faster than our conscious recognition of what we see.” But sound outshines visual input in crucial ways:

By contrast, animals and humans can detect and respond to changes in sound that occur in less than a millionth of a second . . . It is this faster-than-thought auditory speed, with a wide range of tones and timbres that visual color cannot hope to match and greater flexibility than the chemical sensitivities of taste and smell, that lets sound underlie and drive a fantastic range of subconscious elements in the living organism.

The particular value of sound for lawyers may not seem apparent at first. Lawyers aren’t hunter-gatherers trying to sense the first rustle of an approaching predator. But the speed and richness of auditory input can help lawyers in many, many ways. Listening to a judge’s questions at oral argument, an advocate may develop a very quick sense of whether the question is friendly or hostile—indeed before the judge has even finished enough of the sentence to reveal its substantive content. In discussing a settlement offer with a client, the “wide range of tones and timbres” in the client’s voice can very quickly tell a lawyer if the client is excited or skeptical. And sounds that aren’t exactly words—humming and hawing and swallowing and nervous tapping—are auditory input that adds to the richness of a lawyer’s perception in any situation.

Understanding how quickly sound works on the brain should help lawyers better understand and manage reactions, both their own and others’. The richness of sound adds yet another argument in favor of sometimes foregoing the e-mail for a phone call. And when on that phone call, don’t give in to the temptation to tap out a quick e-mail. They will hear that tapping and start to form an impression—in less than a millionth of a second.

 

Thanks to Seth Horowitz for feedback on this post.

EthicsLaw practiceLegal skillsPeople skillsProfessional responsibility

The lawyer’s ethical duty to listen

The word “listen” and its derivations appear only four times in the Model Rules of Professional Conduct and ABA Annotations. But the mandate to listen to clients pervades them. This post explores the implied affirmative duty to listen to clients. Future posts will explore lawyers’ duty to listen to non-clients and potential clients, and lawyers’ duty not to listen to certain people and information.

Lawyers must be competent, which under Rule 1.1 “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [5] to Rule 1.1 states that thoroughness and preparation include inquiry into the law and facts, as well as use of “methods and procedures meeting the standards of competent practitioners.” The word “listening” does not appear; the rule and comments do not specify the methodology for collecting information.  Yet listening is a powerful way to glean knowledge about a matter, and sometimes may be the only way to glean certain knowledge (such as a credibility evaluation).

Rule 1.4 sets out the duty of communication, again without using the word “listening” but again implying its importance. Under Rule 1.4(a)(2), the lawyer shall “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Implicitly this means listening to the client about the client’s objectives. Comment [2] states that when the client must make a decision about the representation, the lawyer must “promptly consult with and secure the client’s consent . . . unless prior discussions have resolved what action the client wants the lawyer to take.”

Through its references to consultation and discussion, the rule establishes an implied duty to listen. This duty has substantive and procedural components.

The substantive aspect is that a lawyer must listen to what the client says regarding “the client’s objectives” as well as the means of accomplishing them. Listening is implicitly required because the lawyer cannot “reasonably consult” about these things unless the lawyer has, to some degree, listened to the client’s point of view.

And listening is not strictly limited to the literal meaning of what a client says. Under Rule 1.4(a)(5), the lawyer shall “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” The means of acquiring this knowledge is not constrained. It is a rare client who would directly state, “I expect you to assist me beyond the ethical rules and the law.” Thus the lawyer must listen to the client (and any other source) enough to know when the situation implies such expectations. [The rule on lawyer as advisor (Rule 2.1) and particularly Comment [5] are consistent with this implied duty to listen to the client carefully to understand what the client wants to do, and advise the client accordingly.]

The procedural aspect of listening in Rule 1.4 is that the listening obligation is reasonable but ongoing (to a degree). Focusing first on the “reasonable” qualifier in Rule 1.4 itself, the listening obligation is not eternal and unlimited. After airing out the client’s objectives and ideas on means for accomplishing them, the lawyer should be able to fulfill the duty of reasonable consultation without further listening.

And under comment [3], when the “exigency of the situation” leaves no time for consultation, the duty to listen gives way to the lawyer’s duty to make a reasonable decision and then keep the client informed.

But the lawyer’s duty to listen is not something the lawyer can finish and forget about. Under Rule 1.4(a)(4), the lawyer shall “promptly comply with reasonable requests for information.” This means the lawyer must monitor communications with the client to be able to comply promptly. The lawyer must be open to the client’s requests for information, listen to them, and heed them when they are reasonable.

Collectively, these references and annotations convey the lawyer’s obligation to listen to clients. Many of the implicit references to listening are presented in the form of how the lawyer will consult with or advise the client. Thus the purpose of the listening is not primarily for establishing empathy or building trust—although these are important and valuable side effects of effective listening. The implied duty to listen exists primarily to allow the lawyer to speak and to act on behalf of the client.

The author gratefully acknowledges the feedback of Professor Timothy P. Terrell of Emory Law School on an earlier draft of this post.

Clinical legal educationLaw practiceLegal communicationLegal skillsPeople skills

A model of listening

For background on listening skills, I wanted to learn more about college courses focusing on listening. The leading text seems to be Listening: Attitudes, Principles, and Skills by Judi Brownell, professor of management and organizational behavior at the Cornell School of Hotel Management. This text has a lot of insights and I will be sharing them and applying them to the legal context throughout the life of the blog.

The backbone of Brownell’s approach is the “HURIER” model:

  • Hearing
  • Understanding
  • Remembering
  • Interpreting
  • Evaluating
  • Responding

Future posts will explore each step of the HURIER model. For now, here are a few holistic observations and broad applications for lawyers:

The proportions within the model are important: Responding makes up just one-sixth of it. This proportion confirms everyone’s intuition that a bad listener is someone who is just working up a response instead of actually engaging with what the speaker is saying. Clients need to be listened to and not talked over, and judges don’t want advocates to interrupt their questions. There are endless situations in the legal professional where speakers can make oafs out of themselves by talking without really listening. Future posts will explore how to mitigate bad listening habits like this and become more effective at listening.

As another broad observation on the HURIER model, it is not meant as a strictly linear or chronological outline of listening. According to Brownell, the model is based on a systems perspective, meaning the parts of the whole are interrelated and interdependent. (She cites Littlejohn’s Theories of Human Communication on this point.) Lawyers engage in so many complex communication situations that this interdependency should be very apparent. How we as lawyers interpret and evaluate depends in part on how much we hear and whether our attention was divided at the time. We can respond by clarifying points that enhance our understanding of the situation and help a further, more substantive response, but excessive requests for clarification could suggest that our hearing and/or understanding may be subpar. The overall process is not neatly linear but iterative and self-reinforcing.

The HURIER model has insights to offer for face-to-face interaction as well as mediated conversations such as videoconferencing and mediated asynchronous communication such as podcasts, webinars and MOOCs. The individual listener’s methods may differ depending on the situation: In a face-to-face meeting, a lawyer may ask a client to repeat something or may decide not to ask, so as not to interrupt the flow of conversation but rather to investigate later. In a webinar with a learning quiz attached, an attorney may choose to “rewind” the material to repeat something because the “flow” of conversation with the recording is unimportant. Listening contexts vary for lawyers as for everyone else, but the model remains informative.

And lastly, the model skirts around difficulties nailing down a specific definition of listening, Brownell writes. Perhaps the most authoritative definition is the International Listening Association’s http://www.listen.org : “Listening is the process of receiving, constructing meaning from, and responding to spoken and/or nonverbal messages.” For lawyers, each and every piece of this definition matters very much to their effectiveness.

Law practiceLegal skillsPeople skills

The quiet law office

iStock_000015443913Small

This blog was partly inspired by  a New York Times article, The Flight from Conversation. The author, Sherry Turkle, explores technology’s disruptions at length in the book Alone Together: Why We Expect More From Technology and Less From Each Other. In the New York Times article, she describes the “flight from conversation” within a law office:

In today’s workplace, young people who have grown up fearing conversation show up on the job wearing earphones. Walking through a college library or the campus of a high-tech start-up, one sees the same thing: we are together, but each of us is in our own bubble, furiously connected to keyboards and tiny touch screens. A senior partner at a Boston law firm describes a scene in his office. Young associates lay out their suite of technologies: laptops, iPods and multiple phones. And then they put their earphones on. “Big ones. Like pilots. They turn their desks into cockpits.” With the young lawyers in their cockpits, the office is quiet, a quiet that does not ask to be broken.

I have heard this same quiet in several 21st-century law firms. It seems different than how I remember law practice. In my day of practicing law, which was the late 1990’s, the office was a busy, noisy place. Every few minutes someone went to the file cabinets lining the hallways, opening and shutting the cabinets with a click. Workrooms were a place to assemble major exhibit collections, with open-door meetings where attorneys and paralegals gathered to spread out the papers and make a plan. Phones rang—a lot—and faxes curled off machines. Snippets of NPR could be overheard from open doors, as well as loud conversations on speakerphone. Senior lawyers sometimes phoned junior lawyers but other times just yelled down the hall, “Do you have the pleadings file in the Smith case??”

It’s easy to dismiss these reminiscences as pre-recession, pre-iTunes nostalgia. They are. Lawyers’ working styles have differed since the time of Dickens’ Bleak House and before; and of course technology has helped with certain kinds of communication, productivity, and even focus. Here’s a rousing (non-law) defense of headphones at least for the “boring tasks,” but experts on the legal workplace are less enthusiastic. Focus is important but isn’t everything. Being open to conversations and the opportunities they bring is something too. 

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Welcome

Welcome to Listen Like a Lawyer. This blog will explore the theory and practice of effective listening, and how lawyers, law students, and just about everyone involved in the practice of law can benefit from working on their listening. Effective listening provides a distinct advantage to anyone whose job involves communication—a description that certainly fits lawyers.

The motivation for this project is twofold.

1. Good listening makes good lawyering

First, good listening is a necessary component of good lawyering. Lawyers who are powerful listeners can negotiate more effectively, answer judges’ questions more responsively, communicate more completely with clients, and otherwise enhance their relationships and effectiveness in almost all aspects of their practice.

2. Listening is in jeopardy

Second, I have a sense—and don’t think I’m alone in perceiving—that listening skills are deteriorating among lawyers and the general public. Distractions and the dominance of visual media and written communication are sapping our attention and our strength at gleaning auditory information. The foundation for these beliefs, as well as challenges and counter-arguments, will be topics explored during the life of the blog.

Who this blog is for

The intended audience is anyone interested in effective communication by lawyers. I think this group includes, at a minimum, lawyers, law students, in-house counsel and others who regularly work with lawyers, judges and mediators, law professors (particularly clinicians and those who teach communication- and skills-based courses), and other professionals in the legal industry. I hope to draw on a variety of source from academic to practical to totally outside the box.

This is a conversation about listening and lawyering

The benefit of the blog format is that it permits and encourages a flexible, responsive flow of ideas. Please make constructive comments, and e-mail me at jromig@emory.edu if you want to comment privately or discuss possibilities for guest blogging. Thank you, and enjoy the blog’s journey exploring what it means to listen like a (really good) lawyer.