Category: Legal communication

Emotional intelligenceLegal communicationPeople skillsProfessional developmentProfessional responsibility

Talking means making mistakes (and that’s okay)

Sherry Turkle’s Reclaiming Conversation: The Power of Talk in a Digital Age has been on my reading list for a while now. I’m in the process of reading it and was stopped cold by something on page 54. Turkle is talking about “the flight from conversation.” The flight from conversation basically means kids these days—and yes, their parents too—don’t want to talk and will take active steps to avoid conversation.

https://www.flickr.com/photos/barry_b/143928531/in/photolist-dHEWp-fwfo9x-8eJS1L-cnr4r5-8eJV6J-8eFzux-aUbvWF-aUbviF-6BVufY-8eJZfS-8eFzdR-8eJUHQ-8eJUnQ-8eJYU9-8eJWc1-6Q3UVm-8eFyDk-aKPi8T-8eJXRU-8eFDq6-pR8z8t-8eJYcq-8eJTmN-8eJVHw-8eFCjV-8eFAEr-8eJU4y-8f54q4-8quZL3-8KdXtG-d5nAa3-geUjn4-DdJibk-4z1Yux-8YEJTM-bsC179-eYbj32-4PpL7E-6ebNVp-nCDLcE-dYT8p3-62dKpd-58hFYL-bUZK3m-9Zjt3J-nKVQU7-hfoTV3-dLnekA-9PAWD7-bNQjUp

I’m in the process of reading it and was stopped cold by something on page 54, a reference to a law student in the making.

This is a pretty big book, and in the first section  (which includes page 54) she goes to lengths to lay out her basic premise about “the flight from conversation.” This flight affects every facet of life and goes down very deep in the psyche. The most worrisome suggestion is that an intense digital life (at the expense of a social life) doesn’t just make people inefficient or unempathetic at that moment, but it actually stunts emotional growth.Turkle describes the work of Stanford psychologist Clifford Nass showing that spending too much time with social media and its “thumbs-up” emotional culture deprives frequent users of the ability to process more complex negative emotions. These people then become even less able to respond appropriately and quickly in real-life situations involving negative emotions. This diminishing skill set creates a downward cycle driving people to avoid difficult face-to-face situations and to seek out comfortable digital forms of communications.

Page 54 is part of this background. It caught my eye because it featured an aspiring law student. Turkle frames this anecdote as “[t]he desire for the edited life”:

A college senior doesn’t go to his professors’ office hours. He will correspond with his teachers only through email. The student explains that if he sees his professors in person, he could get something “wrong.” Ever since ninth grade, when his preparations to go to an Ivy League college began in earnest, he and his parents have worked on his getting everything “right.” .  . . Now he is three years through that Ivy education and hoping for law school. He is still trying to get things right. “When you talk in person,” he says, “you are likely to make a slip.”

He thinks his no-office-hours policy is a reasonable strategy. He tells me that our culture has “zero tolerance” for making mistakes. If politicians make “slips,” it haunts them throughout their careers. And usually they make these mistakes while they are talking. He says, “I feel as though everyone in my generation wants to write things out—I certainly do—because then I can check it over and make sure it is okay. I don’t want to say a wrong thing.”

I really wish I could reach out to this student. If he’s in law school now and if his first-year professors have used the Socratic method in any way, shape, or form, he has probably had a pretty rough transition. And whether he’s in law school or not, somehow he’s going to have to face a terrible realization: conflict and imperfection and mistakes and regret are

And whether he’s in law school or not, somehow and sometime he’s going to have to face a terrible realization: conflict and imperfection and mistakes and regret are all a reality, for all of us. You can run but you can’t hide. So he might as well build some strength now, ideally with a matching dose of empathy and humility, to deal with them as best he can.

I would also introduce him to the concept of a “growth mindset” as popularized by Carol Dweck of Stanford. A growth mindset is consistent with effort, mistakes, learning, and forward progress. What you are at the beginning of college/law school/a new job/anything is not your destiny.

The opposite is a fixed mindset, which is the concept your skills can be uncovered and revealed by testing but not truly built up or changed. The fixed mindset has a lot of disadvantages. One of them is a possible correlation with unethical conduct. A person’s desire to conceal a mistake might make that person dangerous. Being terrified about making a “slip” can lead to covering up mistakes, not seeking help, and in general turning potentially small problems into much worse.

This is just one reflection on the wealth of points in Turkle’s book. I’m still reading it! Throughout the summer I will be blogging about passages of interest, and perhaps even trying a Twitter chat at some point.

Read Jonathan Franzen’s New York Times review of Reclaiming Conversation here.

 

 

 

Legal communication

More on legal marketing and listening

A year ago I watched a barrage of #LMA15 tweets with interest. Dan Pink was the keynote speaker at the Legal Marketing Association’s 2015 Annual Meeting. After a clip from Glengarry Glen Ross, he talked about “Attunement, Buoyancy, and Clarity” as the ABCs of selling.

Starting especially with Pink’s discussion of capital-A Attunement to the buyer, it was impossible not to make connections with listening. As the live tweets recounted, “attunement” means understanding the intellectual and practical needs of sophisticated business clients. (It’s not really about general emotional intelligence, although that certainly can’t hurt.) Pink’s references to clarity also centered on helping clients find their hidden problems and curating information on point to begin to address those problems. I tried my own curation of tweets from #LMA15 on those concepts here.

Seeing the high points of Pink’s talk reinforced the fact that for many lawyers—especially those in law firms and those with repeat business of any type—legal marketing and listening are very much aligned. Legal marketing officers who visit clients and seek feedback on the firm’s work are serving as a listening channel to enhance client service and anticipate problems before they grow. As I’ve heard from a variety of sources, clients don’t really tell a firm or lawyer when they are going to pull work. It just slowly starts to dry up until there are no more matters to complete and no relationship left to tend. Listening to what clients are and are not saying is therefore crucial. It’s also extremely challenging for any single attorney also engaged in providing the legal services for that client, even a designated relationship partner with an oversight role. On a more positive note, this additional listening channel can help attorneys and firms act more responsively and anticipate client needs, perhaps finding “clarity” about hidden problems as Dan Pink mentioned in his talk.

This year I have the pleasure of actually attending the #LMA16 conference in Austin. I’ll be speaking Tuesday afternoon on how legal marketing professionals could explore potential roles as writing coaches and trainers for attorneys, motivating and encouraging them to blog. This session will focus on writing topics such as writing style for screen readers; methods for choosing good examples and discussing what makes them good; and conditions associated with satisfaction and productivity in legal blogging. (I teach a law-school class in blogging and have published a research article on blogging and other public legal writing in the Legal Communication and Rhetoric: JALWD journal.)

Apart from all the focus on writing, my session at #LMA16 will emphasize listening among colleagues—colleagues serving different but complementary roles in the firm, namely legal marketers and attorneys who write the legal blog posts. If a recent LexisNexis survey is correct that a majority of representative law firms are planning to do more blogging to generate business, then the question becomes how that additional blogging is going to occur. Maintaining open lines of communication between attorneys and legal marketing professionals seems like part of the answer. Other sessions at #LMA16 will address collaboration and communication inside the firm in many other ways.

 

 

 

AdvocacyCross-cultural communicationGenderLegal communicationPeople skills

What do we hear when we hear vocal fry?

Tennessee professor Michael Higdon has followed up his 2009 Kansas Law Review piece on nonverbal persuasion with a thoughtful new essay,   “Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion.”

If you’re not familiar with vocal fry, check out this MSNBC video at minute 3:30 for an example drawn from law practice (“Um, I don’t really think that evidence is sufficient.”) The video briefly explores a few themes expanded upon in much greater depth in Professor Higdon’s piece: Is the problem with women using vocal patterns that diminish their appearance of competence? Or is the problem with managers and society scrutinizing and judging women harshly yet again? Higdon quotes Amanda Hess describing the joint perils of vocal fry and “upspeak”:

So we’re wrong when we raise our voices, and we’re wrong when we lower them.

Higdon takes this debate into the realm of law and the individual choices women law students and lawyers must make. He also places vocal fry into a larger framework of nonverbal persuasion including body language such as gestures, the use of space, the relationship to the speaking environment as well as any props or other instruments, physical appearance, the use of time, and other factors. “Vocalics” or what the speaker sounds like is the factor raising these questions.

Higdon and many others eschew the easy answer that women should stop vocal fry simply because it hurts others’ perception of them.

What is a female attorney to do? Does she scrupulously monitor and adjust her professional nonverbal behavior to match those qualities that social science tells her tend to be perceived more positively? Or does she ignore this research and what it might mean within her own career and instead follow her own preferences on how to present herself? Clearly, this essay cannot definitively answer that question—it is instead a personal question that must be answered by each person individually.

He points out that not all critiques of nonverbal behaviors are complicated: for example, lawyers should avoid pointing at their audience, especially when that audience consists of judges sitting as a court of law. But preferences about some nonverbal behaviors such as women’s vocal inflections raise harder questions of underlying bias. Higdon’s discussion reminded me of the discussion—how can this discussion still be happening?—whether women make a mistake by going to court in pants suits rather than skirts.

[W]hat one gains in the short term by presenting herself as in line with societal expectations can create problems in the long term by making it that much easier for everyone to ignore the sexism motivating those preferences.

Some would say the women lawyer’s identity shouldn’t matter. If she’s going to court where a judge has previously expressed disdain for women in pants suits and if she takes seriously her role as an advocate for the client, then she should grin and wear it (the skirt, that is). Likewise if society is saying vocal fry makes a woman sound incompetent and if a woman lawyer wants to represent clients effectively in said society, then stop with the vocal fry. As Higdon acknowledges, failure to comply can be damaging.

But he urges a deeper analysis that makes room for identity even as it contemplates audience:

[T]he preferences people have for certain behaviors are almost always motivated by something other than the behavior itself. Typically there is a connection in the audience member’s mind between that discrete behavior and something else—and it is the “something else” that requires more inquiry.

I recommend this article, especially as a companion to Higdon’s foundational article on nonverbal persuasion, previously reviewed here on the blog.

Legal communication

Listening is for losers

Listen Like a Lawyer is happy to bring you this guest post from a lawyer who wished to remain anonymous.

E-mail is really my favorite way to communicate. It’s just so much better. You can figure out exactly what you want to say before you send. You have a record of what you said and what the other person sent. And it’s good to see their words on the page so you can figure out the best way to react in the situation. Being able to email back and forth with people helps me keep my work day clear.

Clients don’t really care about a lot of hand-holding and face time. It takes up their time and mine. I bill for every minute I spent with them, and we all already know what we need to do. So what is the point anyway? We need to get on with it and get our work done. If they want to give me feedback, they can email their comments on whatever I send them when it’s most convenient for them.

When I do meet face to face with clients, what they really want is to be dealing with me an expert who knows the answer—right then. They want answers. But it’s a lot of pressure to come up with “the” answer right there on the spot. Being an effective lawyer means I have to think about what I’m going to say when they’re still talking.

Real conversations generally waste my time anyway. The other person thinks out loud and drones on and on. They’re not even sure what they’re really saying. Or they’re venting about their issue, and that’s just not productive. When I’m stuck in a long meeting or conversation, everyone understands that I will be checking my phone. As a lawyer, I have to keep up with what could be more urgent in that moment.

The truth is I’m a bad listener, and there’s nothing I can do about it. It’s not like a person can get better at listening. I’ll never be able to dunk the basketball or sing an aria, and I’ll never be a good listener. People who work with me get used to it after a while.

Happy April Fools’ Day!

 

Clinical legal educationEmotional intelligenceLaw firm managementLaw practiceLegal communication

Teamwork for lawyers

The thing I’ve most wanted to share here in recent months has been “What Google Learned from Its Quest to Build the Perfect Team,” published in the New York Times Magazine’s recent Work Issue. Building perfect teams—or at least more effective ones—is pretty important for the legal profession. For law firms, the complexity of many legal matters demands collaborative work. Yet client teams—and other types of teams such as deal teams and trial teams—are more likely to fail without a good understanding of team dynamics. And “law students baulk at the idea of group work.”

 

To understand why some of its teams performed better than others, Google launched a large study. At first no patterns emerged. Eventually, the key issue was something a bit more abstract than any specific metric. The issue was “group norms”:

Norms are the traditions, behavioral standards and unwritten rules that govern how we function when we gather: One team may come to a consensus that avoiding disagreement is more valuable than debate; another team might develop a culture that encourages vigorous arguments and spurns groupthink. Norms can be unspoken or openly acknowledged, but their influence is often profound.

The impact of group norms on team performance was critical. It could make a team of individually “average” performers out-perform other groups. And it could make a team of individual rock stars perform poorly.

So if effective teams could be built upon consensus of any type—either to argue all the time or to build consensus all the time—then is there really any content to the idea of effective group norms? Actually, yes. The Google study found two common traits of good teams. This is where listening comes in:

Actually, yes. The Google study found two common traits of good teams. This is where listening comes in:

First, on the good teams, members spoke in roughly the same proportion, a phenomenon the researchers referred to as ‘‘equality in distribution of conversational turn-taking.’’ On some teams, everyone spoke during each task; on others, leadership shifted among teammates from assignment to assignment. But in each case, by the end of the day, everyone had spoken roughly the same amount. ‘‘As long as everyone got a chance to talk, the team did well,’’ Woolley said. ‘‘But if only one person or a small group spoke all the time, the collective intelligence declined.’’
Second, the good teams all had high ‘‘average social sensitivity’’ — a fancy way of saying they were skilled at intuiting how others felt based on their tone of voice, their expressions and other nonverbal cues. One of the easiest ways to gauge social sensitivity is to show someone photos of people’s eyes and ask him or her to describe what the people are thinking or feeling — an exam known as the Reading the Mind in the Eyes test. People on the more successful teams in Woolley’s experiment scored above average on the Reading the Mind in the Eyes test.

The broader impact of these two traits is that team members felt “psychological safety.” The New York Times article cited a study by Harvard professor Amy Edmondson describing psychological safety as “a sense of confidence that the team will not embarrass, reject or punish someone for speaking up.”

This article and the concepts it describes should, in my view, be required reading for any law school activity based on teams. It seems like a pretty good idea for law-firm managers as well. The lead researcher on Google’s Project Aristotle study became interested in the topic while attending graduate business school. She had one team that didn’t click, didn’t exactly fail but also didn’t prosper, and didn’t stick together for future projects. And she had another team that clicked and succeeded in competitive environments even though the group dynamics didn’t feel internally competitive.

Law students who’ve done any sort of group work and lawyers working collaboratively have similar stories. This article helps to explain why these teams end up the way they do. And it begins to address even more difficult questions about taking steps to create effective team dynamics from the outset and to make existing teams more effective.

Legal communicationMetricsProfessional development

Better Lawyering Through Better Listening

What are your key strengths and weaknesses as a listener? How can you, as a lawyer or legal professional, actually become a better listener? What listening techniques can lawyers use to be more effective with clients, witnesses, judges and mediators, and others (perhaps loved ones)?

I’m pleased to be collaborating on a CLE workshop that will help attendees explore these questions and gain a better understanding of listening skills for lawyering.The workshop will take place in Tucson, Arizona, on March 10 in conjunction with the International Listening Association‘s annual convention.

Jennie Grau

Jennie Grau

Presenters Jennie Grau and Anita Dorczak will facilitate the session in person, and I am working on video contributions right now. One fun project has been working with several wonderful colleagues and students at my law school on video demonstrations of “bad” and “good” listening skills in legal settings. I must confess it was easier to write and create the bad examples. I’ve also been rounding up a variety of statistics related to listening and lawyering. (Blog post coming soon.) There’s a lot of great research out there, but also several widely accepted yet unsupported urban myths of listening.

Anita is a Canadian family lawyer and mediator, and Jennie is a communications consultant and speaker. Collaborating with these presenters has been a wonderful experience because they are not only smart and creative and talented speakers but also—not surprisingly—such skillful listeners. Arizona lawyers who attend the session are in for a unique experience including role-plays and the opportunity to take an individual “listening inventory.” Boring PowerPoint and lecture, this is not.

Anita Dorczak

Anita Dorczak

The International Listening Association is an eclectic group with connections to many disciplines such as health care, business, spirituality, cultural studies, teaching, and research.

Lawyers, mediators, and other legal professionals are invited to attend the conference for a one-day rate (4 hours of CLE). The full information can be found here. Fees for the session go to the International Listening Association. This is a labor of love for the presenters—which is actually the theme of the whole convention, Listening: A Labor of Love.

Clinical legal educationCross-cultural communicationEmotional intelligenceLegal communicationLegal skills

The “romance” in learning to listen

Education comes in three stages:

romance
precision
generalization

This is according to A.N. Whitehead’s “rhythm of education,” a framework widely shared last month in The Atlantic’s profile of Teller—of Penn and Teller—as a former teacher. He tells the story of his early days as a high-school Latin teacher: Read More

Client developmentEmotional intelligenceLegal communicationPeople skills

Listening under the influence

5273144526_30b460d7d2_z

Flickr/Keoni Cabral/CC by 2.0

What is the effect of drinking on listening skills?

This matters for lawyers who will be networking over a glass of wine or taking clients to dinner where alcohol is served. What appears to be a still-valid 1975 psychiatric study predicted that drinking would have a variety of effects on communication:

In a group setting, low to moderate doses of alcohol would increase the amount of verbal communication, increase disruptions in communication, and decrease the level of acknowledgment of the other speaker’s communication.

This hypothesis was indeed supported by the study, a study with a most interesting protocol.

Participating couples (married or good friends for several months, and between the ages of 21-30) showed up a testing facility for an afternoon of mild intoxication and testing, or a placebo event. They consumed a “low dose” of either “80-proof vodka in a peppermint-flavored cocktail” or “the masking cocktail without vodka.” In the low-dose experiment, women drank .83 ml per kg of weight, so (after a bit of math) about 1.4 ounces for a 110-pound woman. Men drank 1 ml per kg of weight, so 2.7 ounces for a 175-pound man. In sessions separated by about a week, they tested the other option. And some test subjects came back for another alcohol test at 1.5ml per kg of weight.

After consuming the alcohol, they did some coordination tests and then a 20-minute conversation session. The second 10 minutes of the conversation were transcribed for study. Then participants were “fed and detained” until signs of intoxication wore off, and driven home.

The study’s main finding seems fairly intuitive:

Overall, alcohol appeared to make social communication more disorganized and intoxicated subjects seemed less likely to follow conventional rules of etiquette in their speech.

The specific behavioral findings were a little more complex. The study found “an increase in the amount of interrupting or overlapping speech” that was even more pronounced with the higher dose. Essentially: the more you drink, the more you interrupt.

Separately, the study found with the low dose, participants talked more in the sense of initiating more conversations, and used more words. With the higher dose, these trends reversed. Thus the more intoxicated participants interrupted more but used fewer words and started fewer conversations. And there was a modest but noticeable effect on what the study called acknowledgment, or “the degree to which [a statement] responds, in terms of the content and intent” to the prior statement.

The study authors weren’t exactly sure how these effects happened. They could be from the “disinhibition” and “egocentricity” of drinking, or they could be from “decreased auditory discrimination” and “impaired memory” which had been proven in a similar previous experiment. 

The authors recommended further study. They also ended with a caveat on the “dyadic” setup of the study—meaning just two people speaking one-on-one to each other. The one-on-one setup may have made it relatively easier for participants to maintain the conversation. They noted prior work showing alcohol diminishes participants’ ability to hear complex auditory stimuli. Thus they suspected that intoxicated participants would show greater impairment, relative to the placebo, in a more complicated social situation with more people. Something like an attorney networking event, perhaps.

Postscript to this research: Here’s a 2004 master’s thesis on “alcohol in social context.” The study gathered 54 men (strangers) and assigned them to groups of three, then served them alcohol or a placebo while they stayed seated in their groups for 30 minutes. The study assessed their social behavior and emotional states, finding that the drinking groups did not necessarily talk more on a word count basis, but did engage in more socially coordinated communication within the group. In other words, more members of the group contributed to talk within the group as a whole. The study author reported mild surprise that study participants did not report “improved affect” or a better mood after the experiment. The author suggested that the participants may not have enjoyed the forced interaction of drinking and socializing with strangers. This brings us full circle back to networking.

What are the implications for attorneys who want to drink while still communicating effectively?

Above the Law’s Elie Mystal has some classic advice: “You have to know yourself and what constitutes ‘tipsy’ for you.” Some more excellent advice: “when it starts to feel more like a party and less like work, leave.”

He was writing in 2012 about alcohol and networking, prompted by a Greedy Associates’ post with a “Drink-by-Drink Guide for Networking Events.” Instead of “5 Tips for Networking,” that post organized itself around a sequence of five hypothetical “drinks” from the first drink (“the icebreaker”) to the fifth drink (essentially, go home and send a bunch of LinkedIn invitations). The strategy for the “third drink” was to “shut up and listen” by “resist[ing] the urge to talk about yourself the whole night.”

The Greedy Associates’ post wasn’t actually encouraging networking lawyers to consume five drinks at any networking event. And that is a good thing. One takeaway from the present post is the following: if you get to that third drink too fast, shutting up and listening is probably not going to be an easy option.

___

Any article on attorneys and alcohol consumption would be incomplete without noting the study released just in the past week about substance abuse among attorneys. “The level of problem drinking and mental health problems in the legal profession appear to be higher than indicated by previous studies,” reported the ABA Journal. Self-reported problem drinking was at 20.4 percent of the profession. Behavioral questions revealed problem drinking among 36.4 percent of the profession. The ABA article ended in calls for help such as training, mentoring, and bar assistance programs. 

Clinical legal educationCross-cultural communicationLegal communicationPeople skills

Habits of cross-cultural lawyering

What if a lawyer from a modest financial background is working with relatively wealthy clients for the first time? What if a commercial litigator at a large firm takes on a pro bono project interviewing kids in juvenile detention? What if a young female lawyer is representing an international client with a serious legal problem and a seriously sexist attitude?

These are just a few examples drawn from my own experience. The common thread is cross-cultural competence. One might also call it cross-cultural literacy or cultural consciousness or simply cross-cultural lawyering. Whatever you call it, it’s a really big topic.

The culturally competent lawyer is one who can work—effectively—with clients, co-workers, judges, and people in general from a wide variety of ethnic and cultural backgrounds.

There’s no such thing as “culture-neutral” lawyering; debunking that claim is a beginning point in the landmark 2001 publication of Susan Bryant’s Five Habits: Building Cross-Cultural Competence in Lawyers. Differences in cultural backgrounds affect many aspects of the lawyer’s role, even as seemingly simple a lawyer’s request to a client that the client ask for clarification if the client doesn’t understand something or the lawyer is not being clear. Those two different ways of phrasing the request may generate different reactions—or what seems like non-cooperation—depending on the client’s background. Cultural competence connects with core professionalism requirements such as competence and communications, as this Oregon Bar article points out. Lack of cultural competence could also cost a firm in terms of employee and client retention.

In this post, I will briefly summarize the “five habits” framework developed by Bryant and Peters. (They refer to teaching law students, so that is the terminology used below, but obviously the concepts are meant to apply far beyond the walls of any law school class.) At various times this year, the blog will highlight related articles, ideas, and practical recommendations.

Habits One and Two

The beginning of the five habits requires thinking about similarities and differences with clients—not just what those similarities and differences are, but how the process of thinking about them affects the relationship and the law student’s effectiveness. How can a law student find similarities with a client from a very different background? What if a law student identifies as so similar to a client that she misses other important differences?

More broadly for analyzing and managing the client’s case, how do the similarities and differences affect interactions between the client, law student, and judge (or other decision-maker)? How strong is the client’s legal claim, and can the law student shape the legal argument to encompass more of the client’s claim and situation?

Habit Three

When a law student and client come from different backgrounds, the student may miss what the client is intending to communicate. And nothing hurts communication more than the illusion it has taken place (said George Bernard Shaw). The student may believe the interaction is productive when in fact the student is negatively judging the client. Maybe the client even senses that judgment and withholds information accordingly. Maybe the lawyer later finds out that the client has in fact not shared all the relevant information.

Part of the cure for these problems is “parallel universe” thinking in which the student looks for multiple interpretations of the facts. The point is to reach a deeper, less judgmental understanding of the client’s perspective and actions.

Habit Four

Communication is a huge part of cross-cultural competence. Thus, students should think about “pitfalls and red flags.” One pitfall is the problem of “scripts.” Scripts are habitual templates lawyers may use in repeated situations. Rather than using scripts, students are encouraged to bring out the client’s own story with attentive listening and to gauge the client’s own sense of engagement and understanding. (Here I will note the connection to Ken Grady’s exploration of how lawyers are prone to rely on mental shortcuts just as much as non-lawyers.)

Red flags would include signs that real communication is actually not taking place, such as a client who tries to dominate a conversation or another one who withdraws and takes no notes. Law students have to overcome their sensitivity and move past communication challenges; they need a “broad repertoire” of communication skills for gauging clients’ understanding.

Habit Five

The final habit is the most difficult, which is why Bryant and Peters place it last. It asks students to confront their own biases and stereotypes, an uncomfortable process to say the least. To develop this habit, students can “create settings in which bias and stereotype are less likely to govern.” Because people are more affected with bias when they are under stress, Bryant and Peters encourage law professors and students to proactively address stress. Professors can “promote reflection and change of perspectives with a goal of eliminating bias.”

Communication skills are critical

Communication skills run throughout the habits. For example, “remaining present with the individual client is an essential part of cross-cultural competence.” More specifically, good cross-cultural lawyers have to be good listeners:

Intercultural communication skills include deep listening skills and capacities to focus on content rather than style, the ability to read verbal and non-verbal behavior, and the ability to adapt conversation management behaviors and style. These are communication skills that lawyers need in every situation and more so in cross-cultural situations.

The original Five Habits paper is now 15 years old. Bryant and Peters have collected a wealth of materials here at LegalED, including resources on listening.  The discussion of cross-cultural lawyering has continued vigorously, with a recent burst of work on implicit bias.

In this blog’s continuing exploration of additional articles, ideas, and recommendations, the goal will be what Ascanio Piomelli wrote in 2006, surveying the field of teaching about cross-cultural lawyering:

[C]ross-cultural materials are at their best . . . when they spark generous curiosity, nurture engaged, nonjudgmental inquiry, and foster real connection with others.

 

Emotional intelligenceLaw firm marketingLaw practiceLegal communicationPeople skills

Resolution: Delight them

Delight your clients.

That’s a good New Year’s Resolution for lawyers, right?

It’s an entrenched, almost clichéd piece of general business advice. But should lawyers try to delight their clients? It seems like the answer should be “of course!!” But what does that even mean?

A recent reference to delighting the client prompted this post, “3 Vital Mindsets for Creating Impact for the Legal Industry” by Seyfarth Shaw’s Laura Maecthlen on Medium. She reflected back on her hectic law practice in the final month of 2015, when she wasn’t thinking broadly about the legal industry but rather working away with depositions, negotiations, and a lot of detailed, focused, specifically client-centered work.

This day-to-day level of law practice, Maecthlen suggested, is an under-appreciated source of ideas about legal innovation. Those ideas should come not only from large-scale abstract thinking about the legal industry, but also from “the everyday activities of working lawyers . . . in the trenches of our legal system every day.” As she wrote,

It is in this spacepersonal, one-on-one and face-to-facethat we create real change for ourselves and each other.

And this observation—essentially, “small is the new big”—leads to the question of delight:

With all the talk of innovation in our industry, a person could easily lose track of the real goal of innovation, which is to create positive impact. If you stop to consider what we as practitioners are trying to accomplish, you realize it’s simple: higher-value client solutions aimed to delight our clients. Innovation is only one means to achieve this.

What do others say about delighting clients in the legal industry?

On a positive note, legal marketer Merrilyn Astin Tarlton advised lawyers to surprise and delight their clients in several ways. Drop in on their clients, free of charge, and learn more about their business. (This is common but excellent advice.) Give compliments. Help clients see patterns and prevent those patterns from occurring, such as better training and policies to reduce a pattern of lawsuits. Over-deliver and deliver early, rather than setting suggested deadlines and then meeting them just barely or missing them. Say thank you, often.

But the delight concept often comes wrapped in some more ominous tones.

Non-delighted clients are less likely to be long-term clients, and many lawyers are deluded about their clients’ level of delight. That was a theme developed by lawyer and and knowledge-management consultant V. Mary Abraham interviewed legal leadership consultant Susan Hackett. The post is “Focus on Clients; If You Delight Them They Will Stay.” Hackett’s work shows that 85 percent of outside counsel give themselves an “A” for their work, but only 35 percent of in-house counsel would in fact recommend their outside counsel to other clients.

What can lawyers do to climb into that 35 percent—to get that “A” grade and make the client “fall in love” with their services? One big step has to do with listening, with two necessary sub-parts to make it work. Part one is about asking meaningful questions of clients:

The very best way to deliver value to each client you serve is simply to ask them what it is that they value, what it is that you’re doing right or could do better, what it is that other lawyers or service providers offer them that makes them pleased with the service, and how it is that you personally could improve.  Ask it in person, ask it in surveys, ask it outside the course of matters, ask it during the matters on which you’re serving. Saying once a year over dinner, `so how are we doing?’ is going to get an answer as specific as `just great.’  Trust me, that’s not the feedback you need.

And part two is about listening to and doing something about that feedback:

Asking for feedback is not the same thing as acting on it.  Too many of us ask for feedback and then we sit back and `admire’ (or ignore) the results. Instead, we need to take actions that allow us to improve from the feedback.  If you receive positive feedback, look for ways to apply the principles underlying your success to other kinds of work. At a minimum, when the evaluations relate to performance, include them in the performance reviews of those involved. After all, if lawyers’ compensation and advancement are only tied to the number of hours they’ve billed, and not to how well they serve clients, we’re all in trouble.

Delight also came up in the context of “in-house counsel gripes” which is practically its own genre of posts on Law 360. Rich Baer, then of Qwest Communications and now Liberty Media, urged lawyers to borrow the delight aspiration from non-legal businesses:

When you’re thinking about client service, don’t think like a lawyer, think like the owner of a great restaurant or the manager of a wonderful resort and really strive to delight your client every time you’re dealing with them.”

While this statement itself is positive, the rest of the post (which quoted other in-house counsel as well) essentially bludgeoned the reader with what not to do. Don’t surprise the client, don’t max out bills, and don’t send 50-page memos when short e-mails can give the same information. (The post also quoted Baer criticizing outside counsel who fail to share a “simple thank you for the business”—the mirror-image of Tarlton’s advice to say thank you often.)

Thinking about what not to do brings us back to the business theory of whether delight should be a client service goal at all. If you search “delighting customers,” the top result is a Harvard Business Review piece urging the opposite: “Stop trying to delight your customers.”

The article argued that the vast majority of decisions are made not because someone is delighted and drawn to the amazing service of a business. Rather, these decisions are made because of being annoyed, put off, frustrated, and otherwise subject to terrible service. Customers have the impulse to “punish bad service” much more so than to “reward delightful service.” (This idea is rooted in psychological studies that “Bad Is Stronger than Good” previously discussed on the blog here.)

Therefore, the HBR piece argues, the better approach to customer satisfaction is not delight but “reducing their effort—the work they must do to get their problem solved.”

In her post on goals for 2016, Seyfarth Shaw’s Maecthlen was onto this as well. She urged finding clients’ “pain points” and making “process improvements” to address them. (This rhetoric is consistent with the legal project management movement that sometimes speaks in the language of delight.)

Addressing pain and process comes up in so many different ways. Many process improvements are substantive, like the suggestion above about recognizing and mitigating a pattern of small sporadic lawsuits. Of course the method of communication itself may be a pain point as well.

Here, as I write on a Friday afternoon, a small but specific example comes to mind. Some clients may not enjoy receiving a barrage of legal updates late Friday afternoon as lawyers clean and close their own inboxes. The lawyer may feel a sense of respite and reprieve, while the client now has a list of things to do just at the beginning of the weekend. Other clients may appreciate a regular consolidated end-of-the-week update. What is their preference?

Asking what they want and respecting that preference is not all that innovative. But, to paraphrase Laura Maechtlen, it’s this one-on-one and face-to-face work that can—perhaps—add up to a sense of delight.