Thanks to the International Listening Association, I learned of this video from HuffPost Live. It’s a quick, fun, informative look at problems with listening and ideas for improving. The panelists offer suggestions for managing your own thought process when you feel like you’re about to “check out.” The panelists also delve into different types of listening and the consequences of good and bad listening. I recommend the video for its informative and sometimes funny take on listening problems and solutions. (There is a really funny movie clip about halfway through.)
Listening to clients seems like mostly an affirmative duty, if only an implied one. But in writing about lawyers’ duty *not* to listen to represented parties, I began to wonder about the limits of a lawyer’s duty to listen to clients as well:
Can a lawyer ever choose not to hear what the client has to say?
Can a lawyer be present with a client and let the client talk out loud, but choose not to really listen to or process what the client is saying?
Can the lawyer listen to what the client is saying but choose not to act on it? Does the lawyer ever have a duty not to act on what the client says?
The main area where a lawyer might have the ethical discretion not to listen to a client, is in dealing with clients who have diminished capacity. Model Rule of Professional Conduct 1.14 sets out a lawyer’s obligations and options in representing clients with diminished capacity:
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
As the language shows, the rule has several guiding principles:
- preserving a lawyer-client relationship that is as close as possible to a relationship not involving diminished capacity
- allowing the lawyer to seek help from third parties when necessary
- not allowing the lawyer to substitute his or her judgment for the best interest of the client, as Elizabeth Laffitte points out in her article Model Rule 1.14: The Well-intended Rule Still Leaves Some Questions Unanswered (LexisNexis).
Echoing and developing Rule 1.14(a)’s requirement of a normal client-lawyer relationship, comment 2 specifically focuses maintaining communications:
The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
The rule is thus quite clear that the lawyer has the same ethical duty to listen to the client as applies to clients without diminished capacity. The question then becomes how to carry out this duty for a client with diminished capacity.
Choosing not to hear
For example, what if a client has sporadically compromised mental states—times when the lawyer can barely follow, much less understand, what the client is saying? Can the lawyer treat the client with attention and respect while also effectively choosing not to hear what the client has to say?
Good lawyers recognize and accommodate these peaks and valleys in clients’ abilities to communicate.
“Many times, a client may have diminished capacity, but still be pretty lucid at certain times during the day,” notes attorney Adrienne Ashby of the Georgia Senior Legal Hotline, a project of Atlanta Legal Aid and other Georgia agencies.
Comment 6 to Model Rule 1.14 explicitly instructs lawyers to take into account their clients’ “variability of state of mind” as well as their known long-term goals:
In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.
Thus, once it becomes clear a client is in a temporarily compromised state of mind, a lawyer could indeed choose neither to hear nor listen to a client. Ashby suggests that “[a]n attorney would do well to try to communicate with the client during the lucid times, so as to try to ensure that what she hears from the client is something that she can act upon.”
Choosing not to listen to contradictory statements
A different hazard may arise when the client seems lucid yet makes contradictory statements in the same conversation. Under Rule 1.14, the lawyer cannot substitute his or her own judgment about the client’s best interests. But can the lawyer selectively listen, giving greater weight to the portions of the conversation that the lawyer believes to be more in the client’s own best interests?
Better for the client and less risky for the lawyer would be to seek clarification using listening techniques such as the active-listening response of rephrasing what you have heard:
“Mr. Jones, you said earlier that you would like to put your daughter’s name on your retirement account so that she can use the money for the grandchildren. But then you stated that you wish to disown your daughter and remove her from all your accounts entirely. It is not possible to do both of these things. Which would you like to do?”
Using active listening in this way permits the lawyer to pinpoint areas of uncertainty and also to counsel the client on proceeding.
Listening to third parties
Clients who may have diminished capacity may have family, friends, or others assisting them with their legal affairs. From her work on the Georgia Senior Legal Hotline, attorney Adrienne Ashby describes a common scenario: “The client contacts me to discuss a legal issue, and there is a family member in the background ‘coaching’ them or filling in what the client leaves out. It becomes really hard not to listen to this family member and to only listen to the client. It is even harder when the client repeats what the person says.”
The ethics of this situation are fraught, writes Stanley Herr in Representation of Clients with Disabilities: Issues of Ethics and Control (Hein Online).
On the one hand, family members and close friends know the client and often do have the client’s best interests in mind; they may be the only voice that can fully speak about the client’s values. Thus listening to these voices can be indispensable.
But on the other hand, the voice of the client should remain paramount. Conflicts of interest abound in these situations, Herr writes, “especially where institutionalization, control of financial resources, or other life-determining choices are at issue.”
Comment 3 to Model Rule 1.14 acknowledges this exact situation and allows friends and family to assist. Yet the client’s interests and the client’s decisions must remain paramount:
The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client’s behalf.
Disregarding what the client has said
What if the client makes a clear, lucid statement that appears to run totally against the client’s interest? The lawyer must evaluate both the client’s ability to communicate as well as the client’s decision-making ability, under comment 5 to Model Rule 1.14:
If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary.
Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.
The option to use a “reconsideration period to permit clarification or improvement of circumstances” suggests that the lawyer may indeed choose not to act upon what the client has said he or she wants to do—at least for a while.
These situations are too sensitive for a rigid rule about what a lawyer must listen to or disregard. Rule 1.14(a) says the lawyer “shall” maintain a normal client-lawyer relationship to the extent possible. Rule 1.14(b) gives the lawyer the option to take steps when the client is at risk. Rule 1.14(c) clarifies that the lawyer must maintain client confidences except when necessary to protect the client’s interest under Rule 1.14(b). There are no neat solutions and a lot of judgment involved. Listening with discernment is a crucial part of that judgment.
I hope this post will open up an opportunity for lawyers to discuss their listening challenges—and possible solutions—in representing clients with diminished capacity. Thank you.
On this Halloween—or any average workday—you may encounter some ghoulish listening practices.
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
The Harvard Business Review Blog recently had a great post titled How to Listen When Your Communication Styles Don’t Match. I am so grateful to the Legal Skills Prof Blog for bringing this post to my attention here. The HBR post is based on the work of Mark Goulston in his book Just Listen.
Goulston outlines two scenarios: your conversation partner is a “venter/screamer” or an “explainer/belaborer.” The mismatch comes when a venter encounters an explainer, or vice versa.
Either way Goulston suggests some coping tactics. The sort-of-bad news is that the first tactic is to actually listen to the person. Goulston then suggests ways to get at the speaker’s substantive point and direct the communication in a more focused and constructive way. Some of the tactics are consistent with what you may already do, such as acknowledging what the person is saying and asking for takeaway points. Others may be more unexpected, such as looking into the person’s left eye, which is connected to the right side of the brain (the “emotional brain”). The post is definitely worth checking out in its entirety.
For lawyers interested in better listening, Goulston’s ideas prompt some questions.
- What communication styles do you see in law practice? My hunch is that explaining and belaboring are more common among lawyers than venting and screaming.
- What do you do when you experience a conversational mismatch?
- What do you think about Goulston’s advice for coping with a mismatch?
- What tactics have you developed to listen, understand, preserve relationships, and maybe (just maybe) manage conversations so as to reduce the venting and the belaboring in the future?
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.
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.
- 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).
- 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.
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.
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.
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.
- 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.
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.)
- 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.
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.
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.
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?
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.
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.
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.
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.
Listen Like a Lawyer welcomes guest blogger Karen Worthington, a writer, consultant and children’s policy attorney.
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.”
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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.
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.