Category: Legal communication

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Effective Listening During Fact Investigation

Today Listen Like a Lawyer brings you this conversation with Emory Law Professor Paul Zwier, director of Emory’s Advocacy Skills Program, co-author of Fact Investigation: Interviewing, Case Analysis, and Case Theory Development, and noted speaker with the National Institute of Trial Advocacy.

Many thanks to Professor Zwier for sharing his thoughts on establishing a rapport with your client, active listening for empathy and for information, and developing listening skills over the course of your legal career. To quote his book, “Without expertise in both asking questions and listening, the lawyer as fact researcher is likely to fail.”

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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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Listening and e-mail

A recent critique of “digital dualism” got me thinking about lawyers, listening, and e-mail. Digital dualism refers to the mindset that online digital life is something different—and the frequent implication is: something less—than authentic “real life.”

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Thanks to F. Delventhal

This blog may at times veer to close to digital dualism, as in this early post. It is pretty easy to think that listening to a real conversation is a rich, informative experience, whereas e-mail is a weak, underwhelming medium. To use a visual metaphor from photography, listening in real life is like viewing the rich hues and shades of a photograph taken the old-fashioned way, on real film. An e-mail conversation is like digital photography: easy to use but less subtle in shades and gradations; and subject to digital distortion, conveying only what the limitations of pixels and memory allow.

Lawyers’ responses to this idea would seem to fall along the same lines as non-lawyers’ responses. Some embrace the dualism and the preference for “real life,” arguing that the law profession has become too reliant on digital forms and too hopeful about their promise for the future. In the listening context, lawyers perhaps could do better by themselves and their clients by replacing some e-mail exchanges with real-life conversations.

Some lawyers would go the opposite direction with a pragmatic response: Who cares? Even if e-mail is different or even definitively less than real-life listening, there’s no way a modern law practice could exist on real-time listening alone.

The hope is that many lawyers would seek the benefits of both. They would reconcile the dualism debate by concluding that online and offline communication forms complement and enrich each other. The most effective lawyers strategically inhabit both worlds, picking and choosing their method of communication depending on what is necessary and appropriate. (This reconciliation is suggested in Nathan Jurgenson’s post on digital dualism linked above. As he writes: “our reality is both technological and organic, both digital and physical, all at once.”)

Developing that point, here are some thought on how real-life listening techniques can be useful for handling e-mail:

1. Listen to the tone of an e-mail.

Much has been written about tone in e-mail. It’s hard to control when you’re writing an e-mail. But what about “hearing” the tone of an e-mail?

Listening to the tone of an e-mail can be valuable in a variety of ways. The e-mail’s tone can tell you about how the sender is positioning his client.

The e-mail’s tone can also guide you in handling further communications in a satisfying and/or strategic way. For example, to acknowledge that you understood the e-mail’s intended tone, you can use “active listening” techniques. Active listening generally involves listening to and processing the speaker’s message, then paraphrasing it back so as to demonstrate understanding and initiate further conversation. (Professor Neil Hamilton has a helpful overview of active listening and some pitfalls for lawyers here.)

For example, active listening could help with managing a hostile-sounding e-mail like this one:

 “We have been asking for a new set of draft agreements for more than two weeks. We have received no response from you or anyone on your team throughout this time despite repeated requests. This delay in receiving a new set of drafts is unacceptable.”

Using active listening techniques, a response e-mail could acknowledge and reflect back the sender’s disappointment—while also not admitting an actual significant “delay”:

“We are sorry that you are disappointed in the timing of the drafts.”

By using the active-listening technique in e-mail, a lawyer can demonstrate attention to the matter and good will in continuing to communicate. The lawyer’s e-mail “listening” can also show an understanding of the gamesmanship inherent in some e-mail exchanges, while still moving forward with the matter immediately at hand.

2.  Listen to what is not said in an e-mail.

Peter Drucker asserted that “[t]he most important thing in communication is to hear what isn’t being said.” This is true in e-mail and in real-life conversations.

Thus, searching an e-mail for important gaps can be an extremely important communication tool. Discovering what hasn’t been said allows further conversation to close up gaps and finalize details.

Discovering what hasn’t been said can also be part of an effective lawyering strategy. Understanding what the e-mail sender left out of the message can give a lawyer ideas about strategic next steps.

3. Listen to e-mail silences.

When an e-mail trail goes quiet, that silence may or may not be significant. Acknowledging a significant silence can be a form of listening with empathy:

“After our many exchanges last week on the status of the new draft agreements, I was surprised not to hear from you since my last e-mail on Friday at 2:26 p.m. I hope everything is all right with you and your team.”

Acknowledging a silence can also be somewhat equivalent to nonverbal communication in a real-life conversation, signaling your engagement with and continuing interest in communicating.

So to return for a moment to the idea of digital dualism, it seems the best (and really only) approach is to embrace both forms of communication–both online and offline. Both are necessary to law practice. Both have strengths and weaknesses. Great lawyers use both to get their message across and to listen as well.

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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.

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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.

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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.

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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.”

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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.