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.

“Um” and its discontents

Umm, hi everyone. Umm, does anyone want to join the Facebook discussion I’ll be moderating on Thursday, April 6 at 3 p.m. Eastern? (Note this time is corrected from some earlier messages.)? The topic is the article “The Lawyer’s Guide to Um” by professor Barbara Gotthelf in Legal Communication & Rhetoric: JALWD. Professor Barbara Gotthelf will be joining the conversation, which is open to all lawyers, legal professionals, and law students. You just have to join the Legal Communication and Rhetoric Discussion Group on Facebook before the discussion begins.

I previously mentioned the article here on the blog and recommend the entire thing—which is a pleasure to read—as preparation for the discussion. Gotthelf does not hide the ball:

[U]sing uh and um was not only “perfectly normal,” but also helpful in furthering effective communication.

Whether you hate “um” or barely even notice it, if you’re interested in lawyering and public speaking then this conversation is of interest to you.

This Discussion Group is a project of the journal Legal Communication & Rhetoric: JALWD and is active during scheduled discussions such as this one. This Discussion Group seeks to bring together lawyers, law professors, law students, and legal professionals generally to discuss legal writing and advocacy topics. I’m one of the Social Media Editors for Legal Communication & Rhetoric and look forward to moderating this discussion.

Judge like a judge, please

 

The Georgia Supreme Court recently held arguments on site at the law school where I teach. This was an excellent service for legal education. In class discussion afterwards, my students truly could not contain their enthusiasm for what they observed.

All of the advocates brought different strengths to the podium. One stood out for something he did when any of the justices asked a question:

He paused.

He stood very still throughout his argument and maintained socially appropriate eye contact. When asked a question, he took a moment. During this moment, he did not look down at his notes or up at the sky or left or right. Throughout the pause, his body language was calm and consistent with the rest of the argument.

And—during these pauses—here is something else that stood out:

None of the other justices interrupted the advocate.

They held whatever questions they may have had as the advocate paused, considered, and then responded to their colleague on the bench’s question.

After the argument, I had the opportunity to speak with a few of the justices over lunch. I commented generally about how it’s good for law students to see that they don’t have to race to answer the question. It’s okay to pause and think.

To my delight, one justice said he noticed that too. He said that if he’d had the chance to address the audience after the arguments, that would have been the key idea he emphasized as a teaching point.

And that leads to my plea to moot court judges.

Please let the competitors pause.

Pausing to think is not a weakness. It’s a strength.

It is possible and pretty easy to grade an oral argument based on whether the advocates answer quickly without pausing. This is, frankly, an easier grading criteria than whether they give a good answer.

It’s also possible and pretty easy to interrupt when someone does pause and ask them another question. Then you can also grade their argument on whether they remember and answer two questions at once. That’s also an easier grading criteria than whether they give a good answer.

But if the goal is to help law students become effective advocates, instant responses are not the right grading criteria.

Don’t deduct points for pausing. Add points for pausing and giving thoughtful answers.

The corollary practice is this: when a competitor does pause, don’t interrupt to and add a question. That’s borderline disrespectful to your colleague on the bench who asked the first question and presumably wants to hear the answer.

Moot court judges may meet each other for the first time when they assemble to judge a competition round. But they should still model the collegiality and respect that is apparent on the bench. If a moot court judge asks a question, assume it’s important to that judge to hear the answer.

The result of allowing competitors to pause is this:  Competitors’ answers will be better. The judges’ evaluation will be more accurate on the substance of the response. Speed and lack of hesitation are not an accurate proxy for substantive effectiveness—even in a competitive oral argument setting, and even by 2L and 3L students who’ve tried out and been selected to compete in moot court.

Most of all and beyond the four corners of any score sheet, competitors allowed to pause and think will become better lawyers. They will become the type of lawyer that one day could receive a compliment by a state Supreme Court Justice, for pausing and thinking.

For more information about effective—and ineffective—moot court judging, see Barbara Kritchevsky, Judging:  The Missing Piece of the Moot Court Puzzle, 37 U. Mem. L. Rev. 45 (2006) (available on Lexis and Westlaw).

Also see the Legal Writing Institute’s Model Oral Argument Judging Guidelines.

Soft rock didn’t work

It’s that time of year when I spend hour upon hour upon hour reading and commenting on law students’ draft briefs. To do this, it’s necessary to have a personal “culture of commenting.”

I’m borrowing that phrase from a wonderful writing book, Hilton Obenzinger’s How We Write: The Varieties of Writing Experiences (2015). In the chapter on writing “costumes, cultures, rituals, metabolisms, and places,” he shares delightful stories from a variety of writers on how they create their own personal “culture of writing.”

He credits historian Mary Lou Roberts for the phrase. And Roberts’s own culture of writing apparently includes listening to soft rock. Here’s Obenzinger sharing his interview with Roberts:

[I]t comes as “a shock to some of my students” that she listens to a radio station that features “really bad soft rock.” The fact is that she is no fan of soft rock, but “I can’t listen to good music, because I get distracted.” She can listen to good music when she does something tedious and somewhat mindless, like footnotes; but when writing original material, she needs to be irritated by music that bothers her. “I find as a writer I am best off when I am a little bit distracted. Because if I get too focused, I get stuck; I am thinking too hard about it. I need to either go away from it and come back, which works really well, or I need to be slightly distracted. So the soft rock station “is perfect because the music is listenable at a certain level, but I’m not totally distracted by it.”

Well, I tried it. It may create a culture of writing for one person, but it did not create a culture of commenting for this person. “If You’re Gone” by Matchbox Twenty and its ilk on Pandora Soft Rocks channel did not help me find my grove. Too many words conflicting with the words in my head of what I’m reading and what I might like to share with the student as a comment. My students do not need to hear any voices inspired by Rob Thomas. (“I wonder what it’s like to be the rainmaker” just does not work; legal writing is about the stuff you have to do before making the rain. And “little yellow tags” aren’t really involved in the paperless Real World as much as they used to be.)

I’ve tried the Ambient Radio channel as well, but it just reminds me of the movie Gladiator, which doesn’t help either. The songs are “Elysium” and “Now we are free.” For me to create a culture of commenting, plow through the work, and be free, ambient music turned out to be a fail as well. I do put on the giant ugly headphones from time to time. But I listen to . . . nothing.

 

 

 

 

Lawyers as heroes

Some clients are heroes—or plausibly can be portrayed as heroes in legal briefs. The lawyers remain in the background, telling the story without inserting themselves into it.

Another type of legal writing I study and teach is legal blogging. What I’ve noticed in reading lots and lots of legal blogs is that some lawyers portray themselves as heroes. More than scattering in a few personal pronouns for personal interest, sometimes I see lawyers telling a story with themselves as protagonist, fighting a particular battle or war for years.

This type of blogging narrative tends to crop up in areas where the lawyer represents individuals against the government or large well-organized business sectors. Two areas that come immediately to mind are criminal defense and immigration.

My practice background was in commercial litigation and intellectual property. It was certainly nice to help clients solve problems and navigate disputes. I did help small businesses fend off David-v-Goliath-like situations. I did work with people who cared very much about what happened to them. But at the end of the day, it was business litigation. All of these clients had other things they could do if their very worst outcome happened in whatever lawsuit they faced.

That background made it hard for me to truly get it when lawyers blogged as though they were heroes in an epic struggle. It seemed like there was a lot more lawyer than client in some of these blogs. Why is their own battle and their own story so important that they could explicitly put themselves at the center of it? I suspected a power imbalance, letting the lawyer subordinate the client’s story to the lawyer’s. I suspected ego.

The events of this weekend with the Executive Order on immigration helped me understand.

Lawyers swarmed the airports with their laptops, drafting habeas motions:

Stories of the clients were told, but only those we could actually see:

Many were literally locked in the so-called green room at Customs. Unable to communicate. Prevented from seeing a lawyer. Prevented from knowing that lawyers were outside trying to represent them. Told that the person to talk to about what was happening was President T.

The lawyers doing the work didn’t stop and tweet #habeasselfie or whatever. But someone took their picture. They were portrayed on Twitter and elsewhere as heroes.

And that helped me understand how such a lawyer would, eventually, in reflecting on their work, naturally tell a story in which they are the hero.

The clients are certainly heroic and bear the real burden of all of this. But they’re locked away and unseen, perhaps un-seeable. The lawyer works basically alone. (Maybe lawyers got such a reputation boost from this weekend not only because of the actual exigency and work, but because the photos showed them working so openly in teams bound by ethics and purpose.)

If the lawyer’s work is successful, the client emerges from the maws of the state. At that point, the client resumes their own heroic journey. But the lawyer has a story to tell too.

With this weekend’s airport images of lawyers at their laptops, holding signs offering legal help, and standing up to agents claiming “orders” prevented lawyers from seeing detainees, we got a glimpse of how a lawyer’s day-to-day experience may lead to a heroic narrative—and how that narrative can in fact be justified.

For more on telling the client’s story as a heroic journey, see Ruth Anne Robbins, Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey (Seattle U. L. Rev. 2006).

Silence and group work in legal education

I wasn’t able to attend the AALS (Association of American Law Schools) meeting this year—an annual gathering of thousands of law professors. As a sort of substitute, I’ve been saving an article to read from the Journal of Legal Education, the AALS’s journal on legal education, the legal profession, legal theory, and legal scholarship.

The article is A. Rachel Camp, Creating Space for Silence in Law School Collaborations (volume 65, 2016). Professor Camp co-directs the Domestic Violence Clinic at Georgetown. Here’s an informal outline of the article:

  • the importance of collaboration to lawyers
  • the relative dearth of collaborations and (especially) thoughtfully managed collaborations in legal education
  • the problems students experience with an overly individualistic and competitive culture in law school
  • countervailing forces encouraging more collaborative work in law school
  • the difficulty of collaboration in a somewhat dichotomous world of introverts and extroverts
  • why a seemingly easy solution for collaborative work—brainstorming—produces surprisingly bad results
  • several teaching methods for effective collaboration and group work, avoiding the weakness of brainstorming and capitalizing on ideas from both extroverts and introverts
  • a clinical model of thoughtful collaboration in the Domestic Violence Clinic

Collaboration is intertwined with the skill of listening, which is what drew me to this article. And it turns out that listening can actually be part of the problem with group work as it is often practiced.

For the following scenarios (thought up by me and inspired by the article), assume the following: Professor X has just told the class, “Break into groups of three and critique this draft paragraph. Then come back to share your group’s suggested improvements.”

Scenario 1: 

Student A, B, and C start reading the paragraph. Student A reads quickly and begins to share critique before B and C have looked up from the paragraph. All three eventually share some thoughts. When it’s time to pick a group speaker, Students B and C defer to A, who paraphrases the ideas that A previously stated.

Scenario 2:

Students A, B, and C start reading the paragraph. Students A and B begin to bounce ideas off one another. Student C does not attempt to speak. When it’s time to pick a group leader, A and B decide that B can speak for the group and ask C if C is okay with that. C nods.

Scenario 3:

Students A, B, and C start reading the paragraph. Student A suggests that all three of them brainstorm as many ideas as they can, not criticizing anyone else’s idea but just adding. The group quickly agrees to this method, and Student C goes first. Students A and B then add a few follow-up ideas. When it’s time to pick a group leader, B agrees to sum up their ideas.

So which of these scenarios left students feeling the most satisfied with their brainstorming? In order from most to least satisfied, it would go like this:

Scenario 3

Scenario 2

Scenario 1

And which of these scenarios created the best ideas? In order from best to worst ideas, it would go more like this:

Scenario 1 or 2

Scenario 2 or 1

Scenario 3

Why is this? Classic brainstorming feels satisfying but produces the worst ideas. That can’t be. Actually, Camp’s article reviews the surprising results of research:

[N]early all studies have found that group brainstorming leads to lower productivity when compared with the combined productivity of . . .  individuals brainstorming in isolation.

Group brainstorming is ineffective for several reasons suggested by the scenarios above, both in the experience it creates and the results it delivers. Not that Scenario 1 or 2 above is much better. In Scenario 1, Student A might have had the best ideas but would be unlikely to get another invitation to work with Students B and C. And in Scenario 2, Student C may have had the best idea of all, but never spoke to share it.

Differences in personality and communication styles are at the core of many group problems, particularly differences in extroverts and introverts. These differences may cause conflict and even resentment of domineering group members and others considered “social loafers.” In fact, dominant group members may be working in their preferred style, and “loafers” may need time to process.

Thus the interpersonal dynamics in a group can lead to worse results from that group. The biggest weakness is “production blocking,” which means that some ideas are never generated at all or are generated but then lost:

The idea is forgotten and/or replaced while a group member is listening to others, waiting her turn to speak. . . . Listening to ideas shared by others may be distracting and interfere with the member’s independent thinking [or] determining that his idea is not relevant or original . . . .

More subtly, a person waiting her turn to speak may delay fully forming her idea until her turn arrives, by which time the idea may not be as good.

Listening contributes to another problem as well, “pluralistic ignorance.” This happens when “a vocal minority expresses an opinion or idea and the majority group members fail to speak up based on an overestimation of support for that opinion by the other group members.” Basically, someone listens to another opinion, overestimates its support, and therefore does not engage in further constructive discussion.

Camp describes how this problem is related to the “illusion of transparency” (not really a listening problem, more of a speaking and writing problem). People labor under “an erroneous perception [they] are better communicators than they actually are.”  For example, a relatively introverted member of a group may speak up, but that person’s intentions may not in fact be clear to the rest of the group, causing further frustration.

So these are a lot of problems with misunderstandings and inefficiencies in brainstorming and other group work done in intuitive yet ineffective ways. What’s the remedy?

In the law-school classroom, part of the remedy is creating a space for silence.

Camp summarizes some teaching techniques that void early blocking of ideas, and bring out a wide variety of views. Law professors reading this blog post should consult section IV of her article for detailed teaching notes on “brainwriting,” “chalk talks” “the Nominal Group Technique” and alternative brainstorming by email. They will definitely bring out the quiet students and generate a plethora of thoughtful ideas and responses.

As I was reading these ideas, I was thinking they are great for the law-school environment, but there’s not a lot of intentional silence in groups in law-practice. An introvert won’t be assigned to do any brainwriting in a team when practicing law, ensuring that his or her ideas are formed and shared. Partners and supervisors do not carefully construct chalk talks to elicit broad participation from their teams. But even if these techniques don’t translate to practice at all, creating a more inclusive environment for both introverts and extroverts can improve the isolating effects of traditional Socratic and competitive legal education. Professor Heidi K. Brown is another leading voice in this area.

And Camp acknowledges the end goal of preparing future lawyers. She argues that law schools should be teaching collaboration itself as an essential lawyering skill. For example, Camp teaches an in-class seminar on collaboration. She treats it as a skill that can be learned just like fact investigation and client counseling. Camp recounts how this seminar helps students “move past the pervasive assumption—often based on their own past, negative experiences—that collaborative relationships simply ‘are what they are,’” and, if not going well, must simply be endured. Breaking through this assumption means giving tools for better communication. Students assigned as partners examine their communication styles and discuss the results; they also anticipate conflicts in the partnership and make plans ahead of time to anticipate challenges. These seem to me like pretty good practices for any team of professionals preparing to work together.

Collaboration is certainly not a recent phenomenon for some in legal education, particularly in clinical legal education. (Camp cites a 1993 by Sue Bryant as foundational: Sue Bryant, Collaboration in Law Practice: A Satisfying and Productive Process for a Diverse Profession, 17 Vt. L. Rev. 459 (1993)). And lots of people are doing lots of active work in this area. I’ve recently read and benefited from Anne Mullins, Team-Based Learning: Innovative Pedagogy in Legal Writing, 49 U.S.F. L. Rev. Forum 53 (2015). Camp points out that collaboration is not a mandatory part of any law school curriculum. But it’s now one of the options identified by the ABA for law schools to consider when implementing the ABA’s mandate to teach the “professional skills needed for competent and ethical participation as a member of the legal profession.”

__

As further non-legal reading on the topic of effective teamwork at work, see Charles Duhigg, What Google Learned from Its Quest to Build the Perfect Team, New York Times (Feb. 25, 2016). I’ve heard of professors assigning this article to their collaborative teams, and I’ve encouraged some teams I work with to read it as well.

 

 

Kairos in 2017

Killing time has never been easier, with smartphone settings that feed constant data and the average smartphone user checking it 85 times a day. But what exactly is being killed? How do we describe these moments lost?

One of the first books I read for this blog introduced me to the concepts of chronos and kairos timing. The book was Talk and Social Theory: Ecologies of Speaking and Listening in Everyday Life by Frederick Erickson. Yes, it is an academic work, but with some charmingly concrete moments. Anyone who’s seen a gunner in a law-school classroom will understand a term coined by the conversational turn-taking analysts: “turn shark.”

Erickson also explored the concept of chronos and kairos timing in communication study. Chronos (or kronos) is basically clock or calendar time. Chronos time is measured in equal bits and sequenced perfectly and inexorably one after the other. In contrast kairos timing is about “the opportune time” or “the moment of opportunity.”

Kairos is important to conversation study because mutual timing is what allows people to make sense together in conversations. Kairos moments in conversations are those where the conversation shifts, someone begins to contribute, a person speaking notices someone else shifting their gaze and notices the need for a conversation pause, and so on. Because conversations aren’t defined by automated turn-taking and timed exchanges, communications scholars find multiple kairos moments in conversational analysis:

Kairos is the time of tactical appropriateness, of shifting priorities and objects of attention from one qualitatitvely differing moment to the next….It is a brief strip of right time, marked at its beginning and ending by turning points.

Or, more poetically:

In kairos time there are kinds of time that are apples and others that are oranges. There is a time when rain will fall from a cloud, a time to attack the enemy in battle, a time to negotiate a truce, a point that is qualitatively different in time from the time in kronos just before.

Kairos can be a blessing or a weapon, according to Erickson, who summarizes meticulous moment-by-moment studies of various conversational settings, finding kairos moments of opportunity and of subtle and not-so-subtle power exchanges. A teacher tries to manage a group of students where a shy student continually loses her turn to a “turn shark” who incessantly interrupts. A medical intern and senior supervisor talk about an overdosed patient, with the supervisor offers a smile while implying the intern (who is African-American) might know something about buying illegal drugs. Using “hyperformality,” the intern refocuses the conversation with clinical language about the patient. These conversational studies were done years ago in the era of gas shortages and the Vietnam draft, but connections to today’s topics of gender-based “manterruptions,” cultural competenceimplicit bias, and microaggressions cannot be missed.

And for those kairos moments that are not a weapon but a potential blessing, the fact is they can be squandered. In Reclaiming Conversation: The Power of Talk in a Digital Age, Sherry Turkle details the effects of smartphones on in-person conversations:

The mere presence of a phone signals that your attention is divided, even if you don’t intend it to be. It will limit the conversation in many ways: how you’ll listen, what will be discussed, the degree of connection you’ll feel.

Urban Dictionary now includes a definition of the common, meme-friendly phrase “Wait, what?”:

“[a] phrase used to back the conversation up when you realize you weren’t listening.”

(See Resolve to Use Your Device as a Tool—and to Resist Being Tooled by It, Jack Pringle’s guest post here last week.)

Kairos is a useful idea not just for individual conversations, but also for effective storytelling and understanding broader social situations. In his book Point Made: How to Write Like the Nation’s Top Advocates, legal writing expert Ross Guberman implicitly criticizes chronos timing as a storytelling method:

Few things are duller than a paragraph stuffed with dates.

Instead, he shares a variety of techniques for connecting factual details into a series of meaningful moments. Although not using the terms chronos and kairos, Guberman shows how to play upon a reader’s conception of kairos, in the sense of “the right moment.” His examples show how a fact statement can suggest that certain events happened too slowly or too quickly—or that they shouldn’t have happened at all.

Explicitly applying the kairos idea to advocacy and litigation strategy, Professor Linda Berger explored kairos in Creating Kairos at the Supreme Court: Shelby County, Citizens United, Hobby Lobby, and the Judicial Construction of Right Moments. Berger uses her deep knowledge of rhetorical theory to provide context:

Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the narrative accounting for—how long? what next?—while kairos is the more metaphorical imagining as—at what point? in what space?

The end of any year is an opportunity to make a kairos moment—and the end of this particular year brings to mind thoughts of a crisis or turning point. Berger shows that kairos moments are not passively experienced as one watches a ticking stopwatch measuring off equal seconds and minutes. Kairos moments are sensed and recognized, but they are also shaped. In rhetorical terms, Berger tells us, “kairos presumes that the author will intervene in history’s causal chain.”

So it’s the end of a year. It’s the end of 2016 specifically. It’s a moment of kairos time, or at least it could be—personally, professionally, socially, politically. For 2017, I propose a resolution: let’s not kill time.

 

 

 

 

 

 

 

 

Resolve to Use Your Device as a Tool—and to Resist Being Tooled by It

2016-9-jack-pringle-croppedListen Like a Lawyer is grateful to share this post by Jack Pringle, a partner at Adams & Reese in Columbia, SC. Jack is a litigator, appellate advocate, and information technology attorney. He publishes on Medium and LinkedIn.

Introduction

It’s that time of year: reflection and some soul-searching about what to do differently when we turn over a new leaf on January 1st. Let me offer a modest proposal.

The New Body Part

Everyone reading this post has a smartphone. (Ok, Jared Correia does not have a smartphone, but the rest of you do). And chances are you are not going back to a flip phone, a bag phone, or a rotary dial phone hanging on the wall in your kitchen.

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. — Chief Justice Roberts, Riley v. California.

And I know you have some legitimate uses for your device: very convenient to get things done at any time and wherever you are. Ridiculous amounts of computing power and broadband internet speeds and video and pictures and those GIF memes, emojis, etc., etc. I get it.

giphy

But I am pretty sure that none of us planned to be on our devices constantly, at least not in the way we actually use them. Be honest: when you are on your smartphone, how often are you doing productive things? And how often are you doing “unproductive” things intentionally?

I am not being a scold here. No one enjoys playing as much as I do. The question is whether you decided to play, or whether your device just happened to be there and you started swiping and typing.

Are You Using the Device, or Is it Using You?

Bright, shiny devices that are so easily accessible and so full of bells and whistles tend to hijack self-control. And left to our own devices (thanks, I will be here all week), we are likely to create our own little Skinner Boxes—with games, social media sites, and constant checking of all our information streams—all the while not knowing that we’re doing it.

Your attention is being sought and used relentlessly by those doing business in the online world.

If you’re not paying for something, you’re not the customer; you’re the product being sold”. — Andrew Lewis.

Technology as a Servant, Not as a Master

And when computer tools are using us, we don’t get a chance to determine the ways in which we can use these technologies as part of our “extended mind”- allowing computers to perform tasks that free up our minds to do higher-level thinking. That higher-level thinking is what is going to enable work and workplaces to continue to evolve as automation advances.

In other words, if you are going to have your device as another appendage, then put it to work for you.

Train Your Mind-Try Meditation.

Headspace is just so easy to use. And you can use it anywhere. At anytime. Carving out those quiet moments may create the space for you to see the way your minds works, and how these technologies have commandeered your attention and created the idea that you are so “busy” all the time.

And I certainly am a proponent of getting quiet—whether through meditation, getting outside, exercising, or undertaking other pursuits—and away from devices altogether. But I don’t think it is an all-or-nothing proposition. The key is to have the space and frame of mind to discern what tools to use and when. And to realize who or what is being used.

Give Your Mind a Rest.

See above. In addition, stop keeping all these ideas in your head. Use Evernote or a similar program to memorialize and organize things for later use. If the device is going to be with you at all times, at least take advantage of that fact. As the late great Mitch Hedberg remarked:

I sit at my hotel at night, I think of something that’s funny, then I go get a pen and I write it down. Or if the pen’s too far away, I have to convince myself that what I thought of ain’t funny.

Free Up Your Attention

Quit complaining that you don’t have time unless you have gotten smarter about the way you use your time. Try Boxed. Or Amazon Prime. The idea is to use your time and attention up to do meaningful things. An afternoon of shopping and hauling things around is not meaningful in my world when there are available alternatives.

Feed Your Mind

There has never been a better time to learn new things. And these devices make myriad information sources available to you at any time. Below are just two examples.

Listen to Books. It has never been so easy to have great content literally at your fingertips. Consider a subscription to Audible, and listen while you drive, work out, walk, or otherwise have downtime. If you are looking for recommendations, click here.

Listen to Podcasts. See above. Long-form discussion. Topics directly related to your profession, interests, or entertainment choices. Always available. Pushed directly to your device. You don’t have to do anything but click and listen. Podcasts for lawyers? Click here.

Conclusion

The age of machines (artificial intelligence, machine learning, autonomous vehicles, the blockchain) is only just getting started. The changes in the way we live and work are going to be significant (and arguably have already been significant). In order for humans to figure out where we fit in, we have to have lots of attention and figure out where to spend (pay) it. That means understanding these tools—their benefits and risks—and making sure we use them wisely and effectively.

GIF courtesy of GIPHY via Huffington Post

See Andy McDonald, 11 Ways Smartphones Are Not Making Us Any Smarter, Huffington Post (March 24, 2014)

LLL’s articles of the year

Here’s a list of the best articles and blog posts Listen Like a Lawyer came across this year on listening, teamwork, and communication generally. The year 2016 has certainly been a challenging one for listening. And there have been quite a plethora of good articles. (Or is it “has been quite a plethora”? Never mind; this is not a legal writing blog.)

If you know of an excellent recent article or post that didn’t make this list, please let me know or recommend it in the comments.

 

Law-related

Jim Lovelace, Learning to Listen, ABA Law Practice Today

Eduardo Capalong, Client as Subject: Humanizing the Legal Curriculum, Clinical Law Review

Educating Tomorrow’s Lawyers, The Whole Lawyer and the Character Quotient (lead report from the Foundations for Practice survey)

Ann Sinsheimer & David Herring, Lawyers at Work: A Study of the Reading, Writing, and Communication Practices of Legal Professionals, Journal of the Legal Writing Institute

Michael Downey, A Customer Service Crash Course, National Law Journal 

Jen Reynolds, Two Quick Takes on Cohen: Open-Minded Listening, Indisputably Dispute Resolution Blog (reviewing Jonathan Cohen, Open-Minded Listening, Charlotte Law Review)

John Balestreire, Connect with your Colleagues in Person, Above the Law

The Lawyer Whisperer, The Degradation of Our Professional Environment . . . and How to Win It Back 

Pam Woldow & Doug Richardson, To Law Firms with Love: How to Fail at Collaboration in Four Acts, At the Intersection Blog

James Runde, Why Young Bankers, Lawyers, and Consultants Need Emotional Intelligence, Harvard Business Review Blog

General interest

Charles Duhigg, What Google Learned from Its Quest to Build the Perfect Team, New York Times

Southern Poverty Law Center, Speak Up: Responding to Everyday Bigotry

Harvard Program on Negotiation, Negotiation Tips: Listening Skills for Dealing with Difficult People 

Jonathan Mahler, I Muted the TV During the Debates. I Still Knew the Score., New York Times

Melissa Dahl, Empathy Is Nice, But It’s Not Exactly Necessary, New York Magazine

Rachel Feingtzieg, Before You Hit Send, Read This, Wall Street Journal; see also Rob Asghar, The Art of the Effective Business Email, Forbes

Jennifer Breheny Wallace, The Benefits of a Little Small Talk, Wall Street Journal

Kasia Wezowski, The Key to Negotiation is Reading People’s Faces, Harvard Business Review Blog

Jeff Haden, How to Be Truly Generous: 9 Things Genuinely Kind People Always Do, Medium 

Drake Baer, The Personality Trait that Leads to Having Friends that Don’t Look Like You, New York Magazine

Core Jr., How to Recognize a Great Client, Core 77

Francesca Gino, Research: We Drop People Who Give Us Negative Feedback, Harvard Business Review Blog

 

 

 

 

 

 

Introverted Lawyers Listen

theintrovertedlawyer_cov-finalListen Like a Lawyer is grateful to Professor Heidi K. Brown for this guest post. Professor Brown is an Associate Professor of Law and Director of the Legal Writing Program at Brooklyn Law School. Having struggled with shyness and social anxiety as a law student and litigator and, through substantial research and self-study, embraced introversion as a powerful asset in studying, teaching, and practicing law, her passion lies with helping quiet law students find their authentically impactful lawyer voices. Her book, The Introverted Lawyer, is forthcoming from Ankerwycke Books in Summer 2017.

In a song called Every Breaking Wave, Bono of the Irish rock band U2 sings, “It’s hard to listen while you preach.” Poignant advice for lawyers.

In Professors Marjorie Shultz and Sheldon Zedeck’s inventory of 26 Lawyering Effectiveness Factors, Number 10 reads:

“Listening: Accurately perceives what is being said both directly and subtly.”

Even so, the American lawyer stereotype epitomizes vivacious talkers much more so than quiet observers and absorbers. Good lawyers must stop talking and not only hear but listen to their clients, opponents, and decision makers in their client’s cases. Similarly, great law professors listen to their students, to ascertain what these learners do and do not know or understand so as to facilitate intellectual growth.

In their book Essential Lawyering Skills, authors and law professors Stefan H. Krieger and Richard K. Neumann, Jr. emphasize, “The ability to listen well is as important in the practice of law as the ability to talk well.” Similarly, in their book Lawyers as Counselors: A Client-Centered Approach, authors and law professors David A. Binder, Paul Bergman, Paul R. Tremblay, and Ian S. Weinstein explain that active listening—defined as “the process of picking up clients’ messages and sending them back in reflective statements that mirror what you have heard”—is a vital lawyering skill. Through active listening, we “demonstrate empathy and understanding,” building trust relationships with our clients to facilitate information-sharing and pave the way for impactful advocacy.

Listening is an intentional and mindful act. It involves action, not passivity. It’s a conscious choice.

While quieting down and ceding the stage to a client or opponent might not come naturally for an extroverted lawyer who thrives and revels in verbal volley and less so in silence, concentrated listening is a powerful innate competency for an introverted advocate. Introverts listen well. They possess a natural affinity for quietude, preferring to step into external stimuli gently, surveying and processing multiple competing sensory triggers before contributing to the cacophony.

Introverts appraise their surroundings, actively hearing, smelling, seeing, touching, and tasting before jumping into the fray. Introverts resist interruption, to their own thought processes as well as others’—which enhances listening abilities. Before speaking, introverts absorb, synthesize, and discern. Sometimes too many external data sources can be overwhelming for introverts. But in law-related contexts, quiet introverts can be the most effective listeners in the room, tuning out distractions and focusing on the issues at hand.

In one-on-one client interviews, for example, introverts pay attention to spoken words and unspoken emotional markers. Perceiving a client’s flinch or a break in eye contact, an introverted lawyer’s nod or encouraging “it sounds like this situation has been stressful for you” can facilitate instead of stifle the client’s continued dialogue. In group meetings and negotiations, rather than immediately speaking, introverted lawyers process facts, rules, and legal theories internally before sharing them externally, which often allows them to extract items of group consensus and discord that other participants talking over one another miss.

Additionally, scientists have linked introversion and empathy. Introversion author, Dr. Arnie Kozak, indicates that “[i]ntroverts can be highly sensitive to the needs of others.” He explains in The Everything Guide to the Introvert Edge that “[t]he ability to sit still can nurture compassion and empathy.” This natural empathy enhances the introvert’s ability to listen patiently to others and resist projecting personal biases and agendas.

Some extroverted law students, law professors, and lawyers might erroneously perceive introverted students or attorneys as disengaged or not assertive enough. In reality, they routinely are just-right-engaged (or even over-engaged) and their legal solutions—initially formulated through listening, and ultimately vetted through quiet contemplation—possess profound might. Next time you’re in a classroom, conference room, or courtroom, notice the quiet ones. And when they speak, listen. Their words will pack a punch.