Category: Legal communication

Client developmentClient relationshipsin-house counselInnovationInterviews

Review: Katrina Lee’s The Legal Career

511sXW1U++L._SX359_BO1,204,203,200_Katrina Lee’s new book on the business of law, The Legal Career: Knowing the Business, Thriving in Practice (West 2017), starts by exploring the design of a law-firm office. Lee points out that the law office can be seen as a microcosm of the legal industry: evolution, yes, but also persistent adherence to the old ways. Newer office designs place greater value on “flexibility, openness, and collaboration.” There is less of a differential between the size of junior associates’ office square footage and that of partners. Law libraries may look more like “a comfortable coffee shop,” or even (heaven forbid) be known as a “lounge-brary.” Less emphasis on space for physical books opens up more space for all employees. Despite these changes, some firms polish the walnut-grained panels the way things always have been.

The Legal Career goes on to chronicle law-firm billing conventions and salary structures, as well as the “precipitous” drop in solo practitioners’ salaries over the past 30 years, and a growing role for legal professionals who are not licensed attorneys. Lee cites research from Heidi Gardiner of Harvard that effective collaboration among law-firm offices and practices groups leads to increased revenue.

Lee now teaches at The Ohio State University Moritz College of Law; before that, she practiced law for 12 years including six as an associate and six as an equity partner. Her book brings together these two careers: it’s textbook for law-school courses in the business of law, with an admittedly heavy emphasis on civil practice. As Lee writes in her introduction, it is “law firm-centric.” It does include in-depth interviews with in-house counsel giving a helpful client’s perspective from within “the corporate law department.” Lee interviewed in-house counsel at a variety of companies ranging from Google to an Ohio-headquartered insurance company.

That is not to say The Legal Career is just a practical how-to manual for understanding the job market as it is and getting a job. That approach would simply replicate the current flaws and weaknesses of the legal industry; Lee’s book is more ambitious. For example, her interview with Dr. Silvia Hodges Silverstein delves into the Gender Billing study. Although female lawyers don’t work less than men and are not less productive, Dr. Silverstein’s study showed “clear” and “depressing” patterns: “[W]omen are assigned less strategic tasks, given more administrative work,” and “Male lawyers’ invoices were also less discounted than female lawyers’.”

The Legal Career explores other business problems and weaknesses such inefficiency and resistance to technological advances. Lee quotes D. Casey Flaherty: a client unhappy with a law firm’s advocacy or counsel should simply “get new lawyers.” But for complaints about the “content” and “production” of information as opposed to the underlying advocacy or counsel, a client may benefit from talking with their lawyer or law firm about better process and efficiency. In this regard, clients can drive change. Flaherty envisions the law firm as “long-term legal suppliers” and recommends more conversations between clients and lawyers to foster more efficient services for clients and more accurate, less discounted realization rates for firms.

Working efficiently raises the issue of incorporating project-management experts into the law-firm delivery model, and much broader involvement by professionals who are not licensed attorneys. Consistent with opinions of many in the law-firm innovation discussion, Lee questions the term “non-lawyer” as potentially “unproductive and unfriendly.” But what term should be used instead? And should lawyering be regulated differently to allow more “legal technicians” and the like? In this way, The Legal Career also takes on challenges with access to justice.

Near the end of The Legal Career, Lee explores the need for innovative legal education. Here again, the range of opinions offered is a strength of the book. One quote from William D. Henderson jumped out at me:

There’s a real opportunity here. Lawyers are always happy when they are solving their clients’ problems. It’s a great day when you solve your client’s problem. In this day and age, we’re going to solve a lot more problems better; that will bring a lot of psychic happiness to lawyering. The economic model for this is unclear, but it’ll sort itself out.

Lee doesn’t—and can’t—provide easy answers to such questions. She encourages creative discussion about the big issues facing lawyers, such as in a classroom setting. But a class on the business of law is not necessary to learn from this book. Anyone who reads The Legal Career will be challenged to reflect on their individual careers, the meaning and measurement of law-firm success, innovation in legal education and the legal industry, the role of lawyers in society, and the future of the profession.

 

 

 

 

 

 

 

 

 

 

Legal communication

International Day of Listening

This Thursday, September 21, 2017, marks the second annual International Day of Listening:

The [International Day of Listening] will promote a variety of events that engage people of all ages and all around the world in listening interactions—everything from one-on-one conversations with friends and family to business or community meetings to governments and their citizens talking about mutual concerns.  The goal is to promote better listening in our conversations that will lead to better relationships and solutions to problems that will help make us more human.

This day, sponsored by the International Listening Association, has its own website, an excellent resource for anyone who wishes to place more of a focus on listening.

Suggested activities range from listening to the environment on a mindful walk to listening to someone with a different viewpoint. Sharing and displaying this poster would be a good way to remind oneself and others that listening is a choice (and how to make that choice). Listen Like a Lawyer’s Twitter feed will share more information leading up to Thursday, but the best source is the website itself and International Listening Association’s email list. Check out what they are doing and join as a member or affiliate if you’d like to get their updates as an ongoing reminder and resource about listening.

Of course, you don’t have to be a member of that association to observe the International Day of Listening.

And it bears noting that this Thursday, September 21, 2017, also falls upon Rosh Hashanah. A friend and colleague, Rabbi (and Professor) Mark Goldfeder, suggested potentially reflecting upon Moses’ command “Shema Yisrael.” The word “Shema” may be translated not just as “Hear!” but can also be explored in the sense of “Listen!” Professor Goldfeder quoted a beautiful sermon from Rabbi Helen Cohn:

It is a great gift to be able to listen to another person in a way that gives relief and comfort and a sense of worth.  Being able to listen is one of the most generous and kind things we can do for another person.  And it’s an ability we all have.  We just need a few tools and a reminder, in order to do it well.

Here’s a post about last year’s first annual International Day of Listening. 

Law practiceLegal communicationProfessional developmentProfessional identity

Welcome, #PracticeTuesday Blog

You may know this blog is a huge fan of the #PracticeTuesday hashtag. I covered it here and follow it every Tuesday at 5 p.m. Eastern on Twitter. The conversation ranges from reminders about handling witnesses . . .

. . . to managing constant distractions . . .

. . . to working with opposing counsel productively . . .

. . . to managing mistakes with integrity . . .

. . . to managing your career over time . . .

. . . and much more.

Co-founders Professor Rachel Gurvich of UNC and Sean Marotta of Hogan Lovells have now expanded the discussion to a blog at http://www.practicetuesday.com.

The mission of the Practice Tuesday blog is broad and consistent with that of the hashtag conversations: "sharing advice from law students, attorneys, professors, and judges for law students, attorneys, professors, and judges." The hashtag conversations thus far have been honest and enlightening, and Rachel and Sean promise the Tuesday Twitter conversations will continue. The blog will expand discussions that just can't fit into 140 characters, via weekly postings.

I know PracticeTuesday.com will address listening skills, and in fact is already doing so in one of the first posts, advice for law students during on-campus interviews:

Listen carefully to what you hear from each attorney and actively engage in the conversation on their terms.

Thanks for the shout-out and links to this blog. It seems we will have a lot in common, and I look forward to more conversation on Twitter and on the new blog.

You can follow the Practice Tuesday blog's updates at @PracticeTuesday on Twitter.

InterviewsLaw schoolLegal communicationLegal educationNon-verbal communication

Non-Verbal Persuasion

This guest post summarizes the authors’ presentation, “Beyond Words: What Business Schools Can Teach Us About Non-Verbal Persuasion” at last week’s Association of Legal Writing Directors Biennial Conference held at the University of Minnesota Law School.

By Erin Carroll, Georgetown Law, and Shana Carroll, Northwestern University Kellogg School of Management

The practice of law places great emphasis on words. Yet, how we communicate transcends words. Studies confirm that when we (lawyers and non-lawyers alike) speak, our tone, volume, pace, stance, gestures, and expression may convey more to our listeners than the words we use.

carroll-profile-200-287Most law schools teach oral presentation skills during the 1L year in the context of the appellate argument or the meeting with the supervising attorney. But often these skills are afterthoughts to a focus on written work. And even in teaching these skills, professors may unduly home in on the substance of arguments rather than on the way they are delivered and how listeners receive them.

Given the realities of legal practice, law schools would do well to conceptualize presentation skills more broadly. Law professors should consider the range of situations in which students will present and how those presentations could be more effective, putting aside their substance.

Business schools can serve as a model. Business school curriculums generally recognize that innumerable interactions in the working world are indeed presentations. Pitching clients, negotiating deals, running an effective meeting, and reviewing employees, for example, qualify. They all offer opportunities for speakers to consider and shape how they want the listener to understand their message.

Carroll_Shana

This is no less true for lawyers. Lawyers—at least those in the private sector—are also businesspeople, bringing in clients, doing deals, and interacting with colleagues. Public sector lawyers, too, negotiate, interview, and supervise. Interactions that fall into any of these broad categories can be bettered by adroit presentation skills.

Accordingly, we urge our business and law school students to think about how they can use their voices and their body language to drive home their intended meaning. That means focusing on volume, pace, tone, emphasis, stance, and an array of other paralinguistics (the qualities of how something is said rather than what is said) as well as gestures and expressions.

First, to familiarize our students with the multitude of means by which we communicate to our listeners, we have done the following exercises:

  • Ask students to find a video of a speaker they find particularly effective or ineffective. Have them post the video to a discussion board along with a description of why that speaker was effective or not. To the extent a student’s description is generic, press the student to substantiate it by indicating particular paralinguistic qualities or aspects of body language.
  • Alternatively, have students watch a video in class, identify these qualities, and discuss them. We have used this video of the 1992 presidential debate between Bill Clinton and George Bush, and this video of a press conference given by Tony Hayward, the former chief executive of BP, just weeks after the Deepwater Horizon explosion.

For either exercise, create a list of the different paralinguistic qualities and aspects of body language that can impact meaning. These could include: volume, pace, inflection, facial expression, movement, and fluidity. Professors might also discuss the importance of congruence between body language, paralinguistics, and message in conveying meaning.

In our classes, once students have some comfort with identifying and critiquing the presentation skills of others, we give them the opportunity to experiment. Here are a couple of things we suggest:

  • Start with a quick, kinesthetic exercise that gets students to hear the range of sentiment their voices can convey and see how their body language can impact meaning. We accomplish this by asking students to pretend they are ordering a ham sandwich. Students line up around the perimeter of the classroom and one by one come up to a podium at the front. Once they get there, we shout out a descriptive word like “despondent,” “angry,” “elated,” or “frustrated.” Students must then try to express that emotion when they say the following sentence: “I would like a ham sandwich with the works.” All sorts of sentences could be substituted here, but we like that this exercise uses something that feels a bit silly as a means of easing nerves.
  • Students are then ready to try out those same skills in a more serious scenario. Pass out slips of paper that include a couple of sentences that students might actually say in an upcoming presentation. For example, if oral arguments are approaching, short excerpts from student briefs could be used. Once students have their “script,” they get a couple of minutes to prepare to present it. During that time, students can think about what meaning they want to convey to the listener and how they can use volume, pace, tone, emphasis, gestures (and any other skills the class has discussed) to best do it. Students could be encouraged to experiment with different variations to identify which approach works best given their objective. They could also be placed in pairs or small groups and allowed to practice and get feedback from one another. Students could then be asked to volunteer to share their version with the class.

Of course, there are many, many other exercises that emphasize paralinguistic and nonverbal communication skills. These could include, for example, exercises on articulation or stance. What will be most helpful depends, of course, on the students’ and professors’ goals.

Regardless, law professors should keep in mind just how broad presentation skills are, how often students will use them in practice, and the variety of ways to teach them. We want to ensure that we are helping students improve their ability to persuade beyond simply teaching them to make a well-reasoned argument.

 

Client relationshipsCross-cultural communicationEmotional intelligenceEmotional laborGender

Emotions in writing

Listening and speaking can be empathetic. Even reading (reading literary fiction, that is) is connected with empathy. But what about writing? And specifically, what about legal writing? The textbooks concur that writers are supposed to harness not only logos and ethos but also pathos in their appellate briefs and other persuasive writing. But what about the pathos—the emotion—in everyday legal writing?

Ever since learning about IBM’s Watson Tone Analyzer, I’ve wanted to try it on some legal writing. I wanted to find out what a “robot” like Watson has to say about the voice and emotions in contrasting legal-writing samples. Here’s what Watson can do:

The [Watson Tone Analyzer] service uses linguistic analysis to detect and interpret emotions, social tendencies, and language style cues found in text. Tones detected within the General Purpose Endpoint include joy, fear, sadness, anger, disgust, analytical, confident, tentative, openness, conscientiousness, extraversion, agreeableness, and emotional range.

As shown below, Watson offers an overall document-level analysis, and it highlights sentences that score particularly high on certain emotional indicators.

For this exploration, I chose the idea of an email sample because emails should be relatively short. Also, email is so prevalent in law practice. It’s a constant, quotidian part of life for many, many lawyers. Email doesn’t stop to ask, “Is this a good time to talk?” It just arrives. And it can have a major impact on the emotions of the recipient. “”When it comes to emails that are negative in tone, it makes you angry,” Professor Marcus Butts told Time Magazine, in an article about why email puts workers in a nasty mood—especially when checking email after normal business hours. The effect of such emails spills over: “Being angry takes a lot of focus and our resources and it keeps us from being engaged with other things.”

Given email’s potential emotional impact on the daily lives of lawyers, this post explores what the Watson Tone Analyzer had to say about two mocked-up emails. The two versions below both have the purpose of forwarding discovery requests to a client. The first version uses more formal language, and the second more conversational language. What does the Tone Analyzer say about these different versions? And in a more realistic situation, could the Tone Analyzer be useful to lawyers working on their communication skills? Following the text of the two emails, the post compares and contrasts how the Watson Tone Analyzer processed these emails.


Dear Ms. Smith,

Enclosed please find the Request for Production of Documents received yesterday (December 16, 2016) (“the Requests”) in the Acme v. Client matter. The Requests entail 136 different items, comprising five basic categories:

(1) foundational corporate documents for Acme;

(2) documents related to negotiation of the lease in question between Acme and Client;

(3) calendar items and email sent and received by three key employees during the negotiations, Jane Doe, John Smith, and Jamal Jones;

(4) documents related to discussions with Third Party Industrial; and(5) accounting records related to the lease between Acme and Client.

(5) accounting records related to the lease between Acme and Client.

After reviewing these Requests, please respond providing a convenient time next week for a phone conference to review them and discuss response strategies.

Sincerely,

Antoine Associate

Antoine J. Associate

Law Firm LLP

Citytown, RH

 


Dear Janel,

This message follows up on discovery in Acme v. Client. Yesterday we received another round of document requests. I’d like to set up a call with you next week to discuss them after you’ve had a chance to review them.

There were 136 individual requests, which are enclosed with this e-mail. The requests fall into five basic categories:

(1) foundational corporate documents for Acme

(2) documents related to the lease negotiation between Acme and Client

(3) calendar items and email sent and received by three key employees during the negotiations, Jane Doe, John Smith, and Jamal Jones

(4) documents related to discussions with Third Party Industrial

(5) accounting records related to the lease between Acme and Client.

Please take a look at the requests and then let me know when would be best for you to discuss them next week.

Many thanks,

Antoine

Antoine J. Associate

Law Firm LLP

Citytown, RH


So how did Watson analyze the emotions in these two messages?

Tone Analysis of First Sample:

The dominant emotion in this message was perceived as anger. Indications of disgust, fear, joy, and sadness were “unlikely.”

Screen Shot 2017-04-25 at 12.55.55 PM

The sentence-level analysis indicates that the anger emanates from plain, descriptive language (what the requests entail) and the final request (“please respond…”). The pink highlighted sentences below were flagged as moderately angry wording:

Screen Shot 2017-04-25 at 12.58.10 PM

The language in this message was viewed as both analytical and confident, but not tentative. The analytical content is highlighted here in blue, with the dark blue being more intensely analytical than the light blue:

Screen Shot 2017-04-25 at 12.59.25 PM

 

Interestingly, the confidence score appears to come solely from the signature block containing the words “Law Firm.” (The same is true of the second sample, where “Law Firm” were also the only text flagged for confidence. But the second sample’s overall confidence score at the document level is 0.00 (unlikely) compared with .63 (likely) for this first sample. More on that later.)
Screen Shot 2017-04-25 at 1.00.35 PM

The same text can be studied in more depth for its social tendencies including openness, conscientiousness, extraversion, agreeableness, and emotional range. For example, the language “Enclosed please find” was ranked as conscientious but not open, extraverted, or agreeable.  That language also scored high on emotional range. That same language was also flagged for showing anger.

Among the five items in the email’s numbered list of documents, item (3) seemed to be an emotional hot spot for Watson, scoring relatively high on all five of the emotional parameters. This result was notable because item (3) is the only item in the list that included individual people’s full names.

Here are the metrics for agreeableness, which form an interesting contrast with the second sample below. The greeting and sign-off are in light green, indicating moderate agreeableness. The only line with strong agreeableness was that same item (3) listing calendar items and emails sent by specific individuals by name. (In contrast, the second sample below tried to be friendlier and succeeded, as indicated by the more strongly agreeable opening and closing passages.)

Screen Shot 2017-04-25 at 1.05.01 PM

Tone Analysis of Second Sample

The second email was meant to be more friendly. What it accomplished, according to Watson, was slightly lessening the anger score and raising the joy score. The joy score is still “unlikely,” but it’s at .49 instead of 0.18 in the first sample. Although it’s less angry and more joyful, it also completely lost its confidence score.

Screen Shot 2017-04-25 at 1.05.46 PM

Despite the overall attempt to use friendlier language, anger still emanated from the email, specifically the sentence enclosing the discovery requests:

Screen Shot 2017-04-25 at 1.07.41 PM

But joy came from the revised beginning and closing words:

Screen Shot 2017-04-25 at 1.08.32 PMThe message did not rank on sadness, fearfulness, or disgust.

Watson’s evaluation of the language looks for analytical, confident, and tentative language. The more informal email’s language was also measured as analytical and confident, like the more formal first sample. Unlike the formal sample, it was also somewhat tentative. The source of this tentativeness was a sentence about what the writer “would like to do”:

Screen Shot 2017-04-25 at 1.10.19 PM

Not surprisingly, that same sentence was also ranked as agreeable:

Screen Shot 2017-04-25 at 1.11.12 PM

Quantitatively, the informal sample contained more agreeable language, ranking 0.89 on agreeableness compared to 0.67 for the first sample.

Conclusion

What did I conclude from analyzing these two samples using Watson’s Tone Analyzer? Like many AI analysis, it seemed to confirm what I think I already know.

  1. Legal information is not inherently happy, at least not in a litigation setting. The most “angry” language in both messages was the language simply describing the scope of discovery.
  2. Language that is more tentative and less confident may also be more agreeable. This correlation raises many questions: does tentative language compromise clarity? If so is it worth it to sound more agreeable? Different writers, readers, and situations will of course require different decisions.
  3. Watson’s Tone Analzyer may be helpful to some writers on a limited basis. As with any computer analysis of language such as Flesch-Kincaid readability scores, writers should ask whether the computer analysis could help them. I don’t see legal writers building Watson’s Tone Analyzer into a checklist for every email. But it could be a worthwhile exercise just on a couple of messages, to see what predominant tone Watson diagnoses.

And as with any computer analysis of language, take it with a grain of salt. I tested Watson on litigators’ favorite nastygram conclusion:

“Govern yourselves accordingly.”

The results are below but here’s a summary: Its predominant language was sadness (?????). Its most notable social tendencies, according to the Tone Analyzer, were extraversion and agreeableness.

Screen Shot 2017-04-25 at 1.28.57 PM

The “govern yourselves accordingly” analysis notwithstanding, a “robot” such as the Tone Analyzer could create an interesting exercise for trying different words and seeing how they measure. So . . . govern yourselves accordingly.

Note on use of Watson: these screen shots were taken on April 25 and 26, 2017. The metrics appear to have changed slightly from tests about six months earlier on identical language. Thus a final lesson is to know your tool and stay updated. Make sure you’re comparing apples to apples if relying on quantitative analysis of language. 

Legal communication

More theory, please

Theories and frameworks for listening abound—how to define it, what the process is, and how to understand it. At our recent CLE on listening skills, my co-presenter Jennie Grau displayed and briefly discussed three theoretical listening frameworks for understanding and defining listening. Those three frameworks are elaborated further in the postscript to this post. The TL; DR is that theoretical models of listening have moved from a simple and linear to complex and multi-faceted, becoming ever more unwieldy. (Cf. evolution of some legal rules such as a sixteen-factor test for whether a worker is an employee or independent contractor).

The CLE was offered to lawyers in the Omaha area, sponsored by the Nebraska Bar and International Listening Association in conjunction with the ILA’s annual convention. In written feedback after the CLE, one of the attorneys commented that they would have liked even “more theory.”

This was an intriguing comment. Why did this person want more theory?

I believe a subset of practicing professionals in any field are drawn to the theory of that field. They want to feel like they deeply understand the tools they use: those tools’ possibilities, limitations, histories, and alternatives. They don’t just want to be skillful at what they do, but to understand why they are skillful. They may pursue theory in order to improve their skills, or simply because, for them, adding a layer of theory helps them enjoy using their skills. An affinity for theory certainly does not extend to all professionals, and that’s fine.

But for readers who fit the bill and for the individual who wrote “more theory,” this post is for you. If you don’t want more theory, please stop reading here!

Precisely because a workable definition has to be reasonably concise, the International Listening Association adopted a streamlined definition of listening:

The process of receiving, constructing meaning from, and responding to spoken and/or nonverbal messages

What is the actual point of all these definitions and frameworks? If you Google “better listening,” you will get results such as “10 Steps to Effective Listening” and “5 Steps to Listen Better.” These may generate clicks, but it’s not clear they are grounded in research or meaningful analysis.

This type of “quick fix” for listening is extremely common, Professor Andrew Wolvin notes in the introduction to Listening and Communication in the 21st Century. And t,his is where theory can help, he says. A strong theoretical basis for listening can help answer whether a purported “quick fix” actually works and, perhaps, why. Wolvin lists several benefits of theory, quoting Steven Littlejohn in Theories of Human Communication. The list below builds upon that list and explores some connections between general listening theory and legal communication specifically.

1. Organize and summarize knowledge

Communication scholars—several of whom I met at the ILA conference—are constantly monitoring the contours of the field. Just as one example, later this year professors Graham Bodie and Debra Worthington will publish The Sourcebook on Listening Research, reviewing (among other things) “a variety of theoretical models for assessing the cognitive, affective, and behavioral facets of listening…alongside 65 measurement profiles.”

Within the legal academy, we also have some incisive, practical scholarship on teaching listening, including a wealth of clinical scholarship. Broader connections can be found in the scholarship on professional identity and cultural competence. As in the general non-legal field, there is more emphasis on speaking and writing. For example, a 2016 paper in the Legal Writing Journal used an anthropological approach to investigate what lawyers do in their daily lives. The method focused on reading and writing but did not include an investigation of listening. This is an understandable scope limitation, partly because of the following observation:

Even in the smallest workplace, email exceeded face-to-face communication and phone calls as the means of communication, which meant that these attorneys were writing constantly.

So theory helps to reveal where the knowledge is, and where the gaps or opportunities are as well.

2. Focus on variables and relationships

As shown in the anthropological study of lawyers above: when we added email as a constant communication channel, what did that new variable do to existing modes of communication? How did it enhance and detract from relationships? According to Sherry Turkle, even the presence of a smartphone—and even when it’s unused and face down on the table—reduces empathy in a conversation.

Within the legal field, there are ongoing discussions of these new variables: for example, how texting and digital communications generally intersect with lawyers’ ethical duties. See, for example, the Nebraska lawyer whose Facebook messages responding to a client’s inquiry via Facebook did not satisfy his duty to communicate.

3. Clarify what we observe (and give tools for observation)

Observing listening is extremely difficult because some of the process is hidden from view. Listening theory can help. For example at the International Listening Association’s Conference, I attended Professor Sherry Wien’s talk where she had painstakingly analyzed and coded every moment of every interaction between Joan and Peggy on all seasons of Mad Men. Using these tools, she produced observations about these characters that could ring very true in many legal workplaces. As I listened to Professor Wien’s talk, I wished that other lawyers had been there to laugh and learn from her approach.

On the more directly practical side at the ILA conference, a management communication firm shared their efforts to develop and scientifically validate a training survey on listening styles. Dana Dupuis of Brio Enterprises presented on the evolution of her consulting firm’s proprietary Hear? Hear! Listening Assessment. The problem with any type of listening survey, as Dupuis stated, is that people’s responses about their own listening aren’t always reliable. And there’s a very specific reason for this, she said:

 Listening in particular is prone to social desirability bias.

That means people think that being a good listener is socially desirable. And their drive to do things that are socially desirable means—intentionally or not—they will give survey answers showing that they satisfy that ideal. Thus, if you survey people on their listening habits, you are likely to come up with a population of amazing, empathetic, skillful listeners. Dupuis has modified the Hear? Hear! Assessment to minimize this social desirability bias through the question design, with contributions from Professor Graham Bodie of Louisiana State.

4. Enable predicting outcomes

Students of innovation in the legal industry may take note here. There are many ways to listen, from individual one-on-one focus to organizational listening through feedback, surveys, and in-person visits. Does a certain level of organizational listening affect client retention? On the individual level, how does the proportion of time spent listening versus talking affect how a typical client perceives their lawyer?

5. Provide a forum for communicating research and ideas

The field of legal communication often seems to parallel the general field of communication, with lots of emphasis on speaking and writing, some on reading, and the least of all on listening. But law reviews and academic conferences do provide a forum for listening-related research within the larger conversation about legal communication. For example the Legal Communication & Rhetoric journal I’m so fond of has featured Professor Barbara Gotthelf’s article, The Lawyer’s Guide to UmWhat’s the function of “um” in speech, and how do listeners react? The possible answers—which she grounds in both communication research and practical experience—are not as obvious as you might think.

6. Help establish norms of performance

What is bad listening, and what is good listening? What are the norms expected in human communication, and how do they overlap or differ in personal and professional life? Theory about listening helps to ask and answer these questions. For example, research shared at the ILA conference suggested that 38 percent of survey respondents could not go more than 10 minutes without checking digital media. The new norms of communication performance are in flux.

7. Generate change

This may be the most controversial. I’m not actually sure a strong listening theory can help generate change, at least not directly. But after attending the ILA meeting and reading some of the articles and books grounded in scholarship rather than platitudes and talking with listening scholars such as Debra Worthington and Andrew Wolvin and Laura Janusik and others, I’ve come to the conclusion that listening theory does absolutely enrich the big conversation about what communication is, and what it could and should be.

Selected Listening Frameworks  

(There are many, many more, such as the well-known HURIER model in Judi Brownell’s listening text. The frameworks here are just one small slice of listening theory.)

The SIER Listening Process

This model is an example of a very basic model of the listening process, formulated by Lyman Stiel in the 1980s:

Sensing

Interpreting

Evaluating

Responding

The SIER model reflects a linear process of listening.  Subsequent models added much more context.

Andrew Wolvin Model

Professor Andrew Wolvin’s model is an example of a more contextual model, and it’s not linear. Rather, it’s a series of overlapping circles, with the top circle containing key “Influencers”:

Speaker

Message

Channel

Listener

Environment

Behind that circle are five contextual factors, all potentially influencing one another:

Attention

Perception

Reception

Interpretation

Response

Alan Ehrlich’s Model of Speech Understandability

Trying to name every potential influence on the listening process is not possible, but Alan Ehrlich has made a serious effort. His visual model of speech understandability branches out to factors such as speaking style, accent, dialect, language choices, formality, non-verbals, vocal delivery, gender and sexual orientation, and interpersonal issues such as power and attitude. And those factors then branch out to perhaps a hundred more sub-factors:

Speech Understandability Index v1.92.png

 

Client relationshipsEmotional intelligenceLegal communicationmindfulnessSmartphones

Preparing to listen

Preparing to write means adopting some kind of routine or even a ritual: get coffee, gather some pads and paper, sit down at the computer, procrastinate a little bit online, and then get to it. Preparing to speak means making notes, practicing to a friendly audience, maybe putting on a lucky piece of jewelry or a power tie.

 What does it mean to prepare to listen?

Last week I had the pleasure of presenting a CLE with communication consultant Jennie Grau and Canadian family lawyer and mediator Anita Dorczak for the Nebraska Bar Association in partnership with the International Listening Association. The ILA was holding its annual meeting in Omaha, which gave Jennie, Anita, and I the opportunity to collaborate in person on this outside-the-box-in-a-good-way CLE.

Based on attorney feedback, one of the most talked-about parts of the CLE was Anita’s segment on preparing to listen. She shared this checklist on Preparing to Listen, courtesy of Professor Nadine Marsnik and the International Listening Association where it is posted.

The checklist prompts thought on readiness to listen. Here is just a preview:

  • Are you physically prepared to listen?

Being hungry—or worse, “hangry”—is an example of not being physically prepared to listen.

  • Are you mentally prepared to listen?

Being mentally prepared means, in part, learning about the topic you will be listening to, so you can get the most out of what you will hear. 

  • Are you emotionally prepared?

Effective listening means the listener knows their own triggers and worries that may be distracting. It also means not judging a speaker for using poor grammar. 

During the listening CLE, Anita Dorczak also supplemented the checklist with a broader, more holistic kind of preparation: a brief, focused walking meditation. As someone who struggles to sit still and meditate, I found this walking meditation a more “do-able” format. And as Anita told the CLE participants, the beauty of a walking meditation is that you can take something you already do—walk, as in walk to chambers or walk to a client meeting or walk down the hall—and make it more mindful. After trying this meditation format just for a few minutes during the CLE, I could definitely understand how it calms the mind and could help with preparing to listen.

Jennie Grau and I presented on other aspects of listening such as models of what it means to listen, listen to understand versus listening to reply, and ethics issues related to listening. I’ll share more about that work in a future post.

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Stereotype threat

Before a math test, women test-takers reminded of their gender did worse on the test than a control group who took the same test without the reminder. This experiment forms a classic example of stereotype threat, which Professor Susie Salmon from Arizona Law spoke about at the recent Moot Court Advisors’ Conference held by the Legal Writing Institute.

Every identifiable group is in some way vulnerable to stereotype threat, explored for a popular audience in Claude Steele’s Whistling Vivaldi. (For an introductory version, here’s Steele’s 1999 Article in the Atlantic.)

In Whistling Vivaldi, Steele outlines the extra burden caused by stereotype threat:

The problem is that the pressure to disprove a stereotype changes what you are about in a situation. It gives you an additional task. In addition to learning new skills, knowledge, and ways of thinking in a schooling situation, or in addition to trying to perform well in a workplace . . . you are also trying to slay a ghost in the room, the negative stereotype and its allegation about you and your group. You are multitasking, and because the stakes involved are high — survival and success versus failure in an area that is important to you — this multitasking is stressful and distracting.

Professor Salmon explores more open forms of bias as well as stereotype threat in her forthcoming article on gender bias in moot court. Comments to female moot court competitors that their clothes or hair or bodies are distracting or they should make their voices deeper and lower all imply that the ideal of an advocate is male.

The second half of her article delves into stereotype threat, which has a more subtle, more common, and often unintentional effect on students who are members of a group (any group) with associated negative stereotypes. Stereotype threat does not have to be the product of intentional bias. But that doesn’t make it any easier to deal with: “The more that a person cares about performing well at a given task, the more stereotype threat will hinder that performance.”

For a moot court competitor, it’s hard enough to deal with nerves, deliver an organized argument, and answer the moot court judges’ questions. The burden of trying to “slay a ghost in the room” of negative stereotypes makes the competitor’s job that much more difficult.

For professors and supervisors seeking to reduce stereotype threat, there are a number of possible mitigating steps. For one thing, comments about natural ability are actually not constructive.

Legal skills are just that: learnable skills that can be built through work and focus.

Thus, a “growth” rather than “fixed mindset” helps law students in myriad ways including with reduction of stereotype threat.

Another method for reducing stereotype threat is to guide students through a self-affirmation exercise. Before you object, please know: this does not mean the Stuart Smalley-type affirmations about being good enough and smart enough and having people like you. Instead, it means writing about a core value you hold dear that makes you special. This type of writing reinforces the writer’s integrity. It also reduces stereotype threat. The theory, as Salmon outlines in the article, is that it provides the writer with a counter-narrative and interrupts the operation of the threat itself.

My favorite suggestion from Professor Salmon’s talk was the recommendation to give “wise feedback.” Wise feedback means that professors, supervisors, and anyone in a position of authority does two things:

  • Show that they have high standards.
  • Provide personal assurance of their conviction that the students/externs/junior lawyers can meet these standards.

Wise feedback is not just feedback, but mentoring over the long term.

Not only does the wise mentor need to deliver wise feedback consistently, she needs to communicate to each student that she cares about that student’s success and believes in her capacity to achieve.

Professor Salmon acknowledged that stereotype threat is a big topic. The resources below are a sampling of what’s being discussed on stereotype threat in legal education today.

ABA Council on Racial and Ethnic Diversity, Beyond Diversity: How Stereotype Threat and Implicit Bias Contribute to the Status Gap (2012)

Sean Darling-Hammond and Kristen Holmquist, Creating Wise Classrooms to Empower Diverse Law Students, Berkeley La Raza Law Journal (2015)

Russell McClaine, Helping Our Students Reach their Full Potential: The Insidious Consequences of Ignoring Stereotype Threat, Rutgers Race and Law Review (2016)

United States Senior Circuit and Chief Judge Emeritus Judge Harry T. Edwards, Reflections on Racial Stigmas and Stereotyping, Paper Presented at the 2017 African American Alumni Reunion, University of Michigan

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Postscript on “um”

Yesterday I had the pleasure of moderating a Facebook chat on Rutgers law professor Barbara Gotthelf’s article The Lawyer’s Guide to “Um.” She published it in Legal Communication & Rhetoric: JALWD (for which, full disclosure, I’m a social media editor.) The Facebook chat, available here in LC&R’s ongoing Discussion Group, was a chance to explore and, in some cases, push back on her unexpected thesis:

Lawyers who speak before courts, clients, and other discerning audiences should know how fillers function to communicate information; they should understand that the actual effects of fillers on listeners may be less dire than imagined and may even be beneficial under some circumstances.

More specifically, Gotthelf shows in the paper how listeners comprehend speech better when it contains some discourse markers and “fillers” (also known more favorably as “planners”) such as “um.” Taking a text and reading it out loud perfectly, with no fillers, is less effective for speakers  than inserting some speech cues—including, yes, “um.”  Use of fillers such as “um” can signal delay while processing a thought, but can also preserve one’s “turn” to talk, attract attention, or actually help emphasize a point.

Building off of Gotthelf’s paper, the most heated part of the Facebook Discussion, if you can use “heated” to describe a respectful group of people who appear to care very much about the topic as well as one another, concerned whether to explicitly call students out on using “um.” Professor Gotthelf’s strongly held belief is NOT to point them out early in a student’s preparation cycle:

Many of my students begin the semester with annoying habits. Umms, giggling, hair twirling. It’s early nerves. That stuff melts away on its own as the students gain confidence from practicing and thinking about their arguments.

In that sense, Gotthelf said, “ums” are caused by natural unpreparedness, which can be cured naturally as well, by substantive preparation. Georgia Tech professor Brian Larson uses the opposite approach:

I DO point them out. In fact, we count each other’s (I subject myself to video as well) ums and uhs per minute in presentation videos (undergrad presentation class). We do so to draw attention to something that many audiences find annoying. I also draw attention to the fact that as a very experienced public speaker, I still average 4.5 UPM (ums per minute). Thus, there is no point freaking out about a few ums/uhs. Most of them start the semester at 12-15 ums per minute and are down below 8 by end of semester.

This debate is important because, as Gotthelf writes in the paper, there are two causes for uttering “um”: (1) task complexity and (2) task concern. Basically when a task is more complex and more vocabulary options to describe a single idea, the speaker is more likely to say “um.” And—in a painful but all-too-understandable irony—being self-conscious about speaking makes a speaker say “um” more. Which of course leads others to comment on the speaker’s use of “um” as a problem to fix, leading to even more self-consciousness.

Although there was disagreement about whether to be explicit in addressing “um,” the discussion participants seemed to agree that obsessively fixating on “um” is a mistake. As Gotthelf noted in explaining why people hate “um” so much, it’s partly because “um” is simple:

It’s easy and superficial to focus on things like “um.” It’s much harder to evaluate the content of what someone is saying.

She also noted in the paper that historically—in the classical glory days of spoken rhetoric—no one cared about “um.” Only with playback on radio and TV did “um” become a major perceived problem. And now a distaste for “um” has entered the popular view of what good speaking is:

I think people just accept the conventional wisdom about “um” and don’t dig deeper. So that conventional wisdom gets repeated and repeated and becomes cemented.

Still professors have to prepare students for the world that is, not the world we wish for. Thus some thoughtful approach to helping students avoid excessively distracting “ums” was a common theme—even if that means rigorously never mentioning “um” at all.

 

Legal communication

Wellness for lawyers…even in Australia

BIO_JDThanks to Jerome Doraisamy for this guest post. Jerome is a 29-year-old lawyer and writer from Sydney, New South Wales. He left legal practice after stints in commercial firms, academia and research, and a major federal government inquiry, to publish his first book, The Wellness Doctrines for Law Students and Young Lawyers. He currently works as a contract consultant for law firms and universities.

Culture can have an insidious effect, either for better or worse, according to the chief justice of the South Australian Supreme Court, The Hon. Chris Kourakis. Wellness initiatives must therefore cater to lawyers’ idiosyncratic needs. Simply checking boxes with standard topics related wellness is not enough.

This past month, the sixth Australian National Wellness for Law Forum—an annual conference for like-minded legal academics, practitioners, judges, practice managers and students—focused its attention on how best the law profession can engender greater levels of self-perception, diversity, inclusion, respect and empowerment, on individual and institutional levels. Australian lawyers gathered in Adelaide for this Forum, where former Australian Football League player Jake Edwards gave the keynote. Edwards founded Outside the Locker room to help support teen football players in Australia. He speaks in a way lawyers can understand:

Discussions of wellness in any endeavor or profession must be “idiot proof.”

That means empowering lawyers and legal professionals to incorporate wellness in their own idiosyncratic way.  “Wellness, for me, means being the person you need to be, not looking to others for inspiration,” Edwards explained. In other words, efforts to ensure a more personalised, human feel to wellbeing issues in law are paramount moving forward.

The workplace productivity of approximately one in three Australian workers is compromised by reduced levels of wellbeing, according to the South Australian Health and Medical Research Institute. This reduced productivity—aside from the obvious health and wellness concerns for individuals—impacts upon national industry and economy.

But addressing such fiscal and commercial concerns cannot be done without adequate consideration for the personal and emotional. There are a number of places we as legal professionals in Australia, and indeed across the world, could start, as I learned from voracious consumption of the wisdom imparted at the Forum:

  1. Learning how to listen better

A problem shared is a problem halved. It people feel as though they can truly be heard when discussing issues (whether they be work-related or intrinsic) they are much more likely to feel appreciated and connected. Taking the time to really listen to people—and not just speak at them from our perspective, or project our own issues—when told of their struggles can make a tangible difference to workplace culture, civility and collegiality.

  1. Catering wellbeing efforts to all staff, including management

Those in senior positions have a professional duty of care to employees to ensure a safe workspace, but that duty can and should also be extended on a personal level, whereby a manager is seen to be an exemplar of balanced wellness. How leaders manage their own quantum of stress or workplace anxiety may lead to effective, specific strategies through which those in employ can be helped and also help themselves. As such, all institutions should ensure wellbeing activities cater to staff across the board, in order to engender wellness wherever it is needed.

  1. Effective integration of the personal and professional

Many people associate stress with the workplace, and well-being with home life. While this is, in many cases, both reasonable and understandable, there can and should be a better nexus between the two environments, so work becomes an avenue through which people are inspired and uplifted, rather than simply tolerating hours spent in the office. Initiatives aimed at increasing resilience and wellbeing should not simply be tantamount to putting a gas mask on the canary in the coalmine; compliance is only half the battle. A caring workplace culture, which caters to the personal and emotional needs of all individuals, gives rise to much more than mere compliance requirements. It makes people feel engaged which, by virtue, increases productivity and success.