Category: Legal communication

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The 4 T’s of Listening

One of Listen Like a Lawyer’s most enduringly popular posts is “A Model of Listening.” The honest truth about why it’s so popular appears to be that students enrolled in listening classes are doing searches like these:

models of listening
model of listening
HURIER model
HURIER model of listening

One clue that these are college students is the timing of these searches: they tend to spike toward the end of the fall and spring semesters. I had actually never heard of a college course in listening until starting this blog two years ago. That’s when I found Judi Brownell’s textbook, Listening: Attitudes, Principles, and Skills. One of the blog’s earliest posts was that Model of Listening posts exploring the “HURIER” model and how it fits with lawyering. (HURIER stands for Hearing, Understanding, Remembering, Interpreting, Evaluating, and Responding.) Apparently a lot of students are assigned to write about this model.

Thinking about college classes in listening leads, inevitably, to thinking about the idea of a law school class in listening. I am not aware of any law-school class focused directly and solely on listening in the way a legal writing class focuses on writing, for example. (Please comment or e-mail if this is not correct.)

Of course listening is directly involved in any class with interviewing, deposing or examining witnesses, or negotiating. It’s a small but crucial part of effective oral advocacy. And part of the overall motivation for Listen Like a Lawyer is that listening plays a subtle role in just about all law school and lawyering activities. A more effective listener is going to be better at taking exams based on in-class material, better at writing papers building off of class discussion, and better at handling skills classes and clinics. Essentially, listening helps in any context where other people are involved. (Professor Tami Lefko presented a menu of ideas for incorporating listening throughout the law-school curriculum at the 2014 Biennial Conference of the Legal Writing Institute, with slides available here. Her awesome collection of listening-related YouTube clips is available as a guest post here as well.)

At the conclusion of my legal writing class, I like to talk about the content of the class and next steps for the students using the following framework, the 4 T’s:

  • Tradition
  • Trends
  • Techniques
  • Transfer

The same framework could be useful in shaping a law-school listening course. So here’s an exploration of what the final class session might look like in a law-school listening class.

Tradition

Listening has its traditions (which have been covered and practiced throughout this semester). Perhaps the listening tradition most deeply embedded in law comes from the conflict resolution field. Mediators seem to have the most training and, in the mediators I’ve been lucky to meet, the most personal affinity with the value of listening. In mediation, the chance to be heard is respected if not absolutely paramount. The mediator’s role in “nuanced listening” for the real conflict is crucial.

Advocacy presents the opportunity for high-stakes listening. Lawyers who examine witnesses must be able to listen to a witness, echo the testimony when needed, and recognize what is not being said. (The same is true of listening to opposing counsel.) There is a strong tradition of listening as part of appellate advocacy as well: Listen to the specific question and respond to it. Listen to the overall feel of the bench and adjust your argument accordingly.

Unfortunately what seems to be the most significant actual or perceived listening tradition is the law is this:

Lawyers are terrible listeners.

This recent observation from John Suh of Legal Zoom may capture it all:

It does not seem a stretch to say the legal profession attracts talkers, not listeners. Any traditions of listening within the legal profession must thus reflect a knowledge of the audience. Essentially, many bad listeners will only want to get better if they think it’s in their self interest. That was one lesson of experience suggested by Debra Worthington, a professor at Auburn University and experienced trial consultant as well as co-author of another college listening textbook. In this sense listening can be coached in a somewhat Machiavellian way, like mindfulness coaching for Type A personalities.

Trends

Legal project management is one movement with listening-related implications such as planned and spontaneous face-to-face meetings. When is face time valuable or a waste of time? What about collaborative platforms that allow clients and lawyers to access and monitor each other’s work real time, with no “wall” of email protocol to separate the work from the communication about that work?

“Social listening” on social media channels is not really listening at all, but it speaks to the way business is done and people communicate today. Lawyers interested in social media will encounter advice to engage in social listening essentially for marketing and understanding how they and competitors are perceived. “Listening” on social media is also of course a trend in juror and witness research.

Returning to depositions for a moment, court reporters may give way to voice recordings and digital transcriptions, a controversial topic to say the least. (How would a listening course be graded? A lot of ideas come to mind and frankly many of them involve some aspect of writing about listening. For example, a good essay question in a listening course would be to discuss the movement toward “digital court reporters” and what that would mean for the judicial process.)

Artificial intelligence-enabled devices that can detect facial expressions—and perhaps predict lying—will be an interesting development to watch as well. Wearable “sociometric devices” may be able to measure and report a person’s ratio of talking to listening.

Techniques

Techniques of listening would of course include “active listening” as well as “passive listening,” as outlined in Professor Neil Hamilton’s law-review article Effectiveness Requires Listening.

There is also the technique of fact investigation that involves first listening with open-ended questions throughout the witness’s first narrative, and then reviewing each step with closed questions to firm up the information.

The art of asking good questions is so critical for lawyers not just in litigation but in any activity including—importantly for those who need to earn a living in private practice—marketing.

And listening for what isn’t being said is one of the most challenging and valuable skills a listener can work on. (Peter Drucker is the most often quoted on this point:  “The most important thing in communication is hearing what isn’t said.”)

Those are just a few examples of the “listening toolkit” lawyers can develop.

Transfer

As with any skill, the ideal is to be able use that skill in a variety of settings beyond the specifics of how it was taught and learned. This is the core of what “learning transfer” mean—transferring learning to new contexts.

Listening skills could be transferred in a myriad of ways. Strong recall of spoken language is always a benefit, but has to be adjusted for the social context. For example, a lawyer may show a high level of skill at remembering and echoing key parts of a witness’s answer and moving forward in an unforgettably effective direct or cross before a jury. However, this echoing might seem aggressive and/or robotic in a private and casual conversation with a prospective client. A subtle and selective echoing could work quite well. Or, weeks later, a thoughtful handwritten follow-up note that paraphrases the conversation can make a very positive impression.

One of the most difficult questions about lawyers and listening is the role of trust. Lawyers simply cannot deeply and trustingly—and naively—listen with an open heart in a combative deposition or negotiation. Different listening skills are required in collaborative and competitive contexts. Even with clients, too much trust may lead to trouble:

But if lawyers transfer distrustful listening to all contexts, that’s really not good either. Several great posts have been written on bad things that happen when lawyers bring certain communication techniques home with them, as in “6 Things We Learned in Law School that Shouldn’t Be Tried at Home.”

And even within work-related contexts, there is certainly room for lawyers to compassionately listen to one another. Perhaps a stronger listening culture with in the community could in some way help ameliorate some of the stress and alienation, not to mention substance abuse and depression, that afflicts the legal profession. Practices such as bar-sponsored “take opposing counsel to lunch” events are a start.

Learning is a process

The ultimate message of this “traditions-trends-techniques-transfer” framework is that learning doesn’t end—or at least it shouldn’t end, and for the truly effective lawyers and lawyer students it never ends—when any given class is over.

Where does this leave the lawyer who wants to be a better listener? For one thing, the lawyer can seek training and the opportunity to reflect on his or her current skills as a listener. Here are a few CLEs related to listening that were offered this past year: “Civility Skills CLE: The Art of Listening” and “The Ethics of Listening—and Not Listening—to Your Client”. I am fascinated with the idea of actors teaching “improvisation CLE” and hope to take one of these classes sometime. On a more traditional note, in a few weeks I will have the privilege of taking an intensive mediation class and fully expect it to address listening in depth.*

Beyond CLEs, lawyers can read about listening, not only on blogs (ahem) but also books such as Thanks for the Feedback (which is about taking feedback effectively and has a lot to say about listening more generally) or Power Listening (which is more in the strategic, utilitarian school of listening). A thoughtful and challenging legal blog that often touches on listening is Lee Rosen’s Divorce Discourse. (For example here’s a post on how not listening is one of the worst mistake a lawyer can make in an initial consultation.) Kenneth Grady’s Seytlines blog and other writing touches at times about listening to corporate clients in the context of larger themes about legal-services delivery and innovation. (Here’s his “5 Reasons to Become a Doctor Dolittle of Client Communication.”)

That’s at least 75 minutes worth of material to talk about. So that’s  the end of these hypothetical lecture notes for the hypothetical final class in a hypothetical law-school listening course. Good luck and please stay in touch.

*Side note for 2016: I’ve also recently had the pleasure of meeting and talking with several listening experts who are working on a potential listening CLE at the International Listening Association’s meeting in Tucson in March 2016. I may have the opportunity to be a guest speaker or contributor in some way, and will let blog readers know more about that as it develops.

Emotional intelligenceLegal communicationMediationPeople skillsProfessional development

Listening from ignorance to mastery

The Farnam Street blog has this, this morning on becoming a lifelong learner:

When assessing our competence in any particular discipline, we can place our level of ability somewhere along a continuum moving from ignorance, to conversational competence, to operational competence, then towards proficiency, and finally all the way to mastery.

The quote is from Laurence Enderson, Pebbles of Perception: How a Few Good Choices Make All the Difference, a collection of wisdom inspired by Charlie Munger, lawyer and vice chair of Berkshire Hathaway. I haven’t read the book, but Farnam Street extensively quotes its exhortations to move beyond “coasting,” and rather to embrace lifelong learning. The passage on this continuum of learning was of particular interest.

What would this continuum look like as applied to listening?

Ignorance

It seems like many are operating in a state of ignorance about listening as a concept and an improvable skill. Yet they may be decent or even very strong listeners. In the same way, a talented self-taught writer may not use the vocabulary learned at the Iowa Writers’ Workshop but still produce great prose. On the other hand, many others are ignorant of listening and/or ignorant about how bad they are at listening. (This is the Dunning-Kruger effect, a delusion of competence that applies to listening as to any other skill and has been discussed on the blog here and here and here.)

Conversational Competence

For the rest of us—the coachable who haven’t yet been coached—a state of ignorance about listening seems inexcusable, although common. I say it’s inexcusable in part because “conversational competence” can be reached without a lot of effort. A bit of time spent learning active listening could be sufficient.

Operational Competence

The operational competence is harder. Actually practicing active listening is much more of a challenge than talking about it. And what if active listening isn’t even the right strategy?

Professor Neil Hamilton, in a formative law review article on listening, talked about passive listening as well. (Here’s the link: “Effective Requires Listening: How to Assess and Improve Listening Skills.”) Passive listening has three components, according to Hamilton (citations omitted):

First, the attorney should place an emphasis on silence in conversations. “[A] brief but definite pause in a conversation” can be an effective tool, allowing the client to collect his or her thoughts and then provide information in a more comfortable fashion.The failure to allow periodic silence can interrupt a client‟s stream of association and make the client feel cut off, hurried, or pressured. Effective lawyers will often pause and allow the client to reflect before continuing with their dialogue.

The second key to passive listening is the use of “minimal prompts.” While silence can make some clients and lawyers uncomfortable, “minimal prompts” can let the client know that the lawyer is listening and understands what is being said.

The final passive-listening technique is the use of open-ended questions.

Of these three techniques, the first—using silence—seems by far the hardest. The role of silence is a challenge for many, perhaps especially for lawyers. Legal Zoom CEO John Suh recently offered the following statistic:

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Before one becomes operationally competent in tolerating and even encouraging real silence, one must first be operationally competent in remaining silent while someone—such as a client—is talking.

Proficiency and Mastery

What makes a listener not only competent, but even proficient and, eventually, masterful? Malcolm Gladwell profiled “gifted listener” Konrad Kellen, the Vietnam consultant who was able to listen to interviews with the North Vietnamese without bias. This meant he did not allow the prevailing theory of the war to shape his perception of what they meant.

Listening without bias is closely connected to hearing what isn’t being said:

The most important thing in communication is to hear what isn’t being said.

-Peter Drucker

In other words, great listeners overcome the “availability bias” of paying attention to what is on the list or what the witness is saying, instead of what is not.

So proficient listening is in part a set of technical skills such as appropriate body language, recall, notetaking, compensating for cognitive biases such as the availability bias. Professor Neil Hamilton’s article provides a variety of self-assessments and exercises. Taken together, the questions on the self-assessment provide a sort of schematic of a masterful listener. Here’s an excerpt:

  • I use head nods and facial expressions to indicate that I am listening to a speaker.
  • I establish and maintain eye contact with a speaker.
  • I maintain strong posture and avoid slouching during conversations.
  • I notice changes in a speaker’s volume or tone of voice or nonverbal expressions.

But masterful listening can be—and at least sometimes should be—more than a set of techniques. Hamilton ultimately approaches listening as a virtue. He writes that “listening requires the ability to empathize and relate authentically to a speaker, in addition to technical skills.”

One difficulty lawyers face with the “virtuous listener” theory is what to do with those who act and speak in bad faith. Even with their own clients, lawyers may need to “trust, but verify.” 

If the true sign of genius is being able to hold two opposing truths in mind at the same time and still function (paraphrasing F. Scott Fitzgerald), then the lawyer-as-listener who reaches mastery is indeed a sort of genius. The lawyer uses all the technical tools of listening. More broadly, the lawyer achieves the virtues of empathy and connectedness—but only when appropriate. Sometimes, as communication consultant Jennie Grau pointed out in her recent interview here, the lawyer-as-listener just has to “listen to respond” (not to understand). The mastery lies in knowing the difference.

I was going to end on that note, but that’s not quite enough. Sometimes a situation that begins with hostility and distrust can be transformed into a real opportunity to resolve a dispute, such as in mediation. Listening has a key role to play here. It’s certainly not easy, and listening may seem at times like a zero-sum game with many players. For example, what if the client (who may not be an advanced listener) perceives the lawyer has somehow empathized too much with the mediator or “the enemy”? The difficulty of these situations is exactly why there’s a difference between the lawyer with competence and the one with mastery. When the conditions are right, the masterful listener can use the tools and virtues of listening not just to encounter and understand a situation, but to change it.

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What is listening? Q&A with Jennie Grau

One of the best things about writing this blog has been the opportunity to talk with and meet (in person, by phone, or by e-mail) a variety of communication experts. One of them is Jennie Grau, President of Grau Interpersonal Communications. Jennie has spent her career training, coaching, writing, and speaking, on the subject of listening. She is a Certified Listening Professional (CLP) of the International Listening Association. Although not an attorney, she is surrounded by attorneys in her family life. In her professional work, she has done a variety of trainings with lawyers and other legal professionals. Listen Like a Lawyer is grateful to Jennie Grau for responding to this Q&A.

What would you say are the classic concepts in listening?

Listening is thought of and explored from many perspectives. Musicians talk about listening in terms of entertainment, emotions, and aesthetics. Listening to music is a form of appreciative listening. While it may not seem pertinent to lawyers, there is a music of the voice which through tone, pace, pause, and quality communicates the emotional undercurrent of human interaction.

In legal contexts and in law school, listening is often thought of as a tool to support critical thinking and analysis. The focus is on critical listening, or reply style listening, to better advocate for a position.

Empathic listening, often associated with medical and therapeutic contexts, is equally important for dispute resolution. Empathic listening involves being able to understand and articulate another person’s perspective. If you can see the world through someone else’s eyes, you are better able to uncover viable solutions which result in more successful negotiations. In addition to dispute resolution, empathic listening is key to building rapport, loyalty, and trust, the foundations of good relationships with both clients and colleagues.

Mindfulness is another form of listening. It involves listening to oneself. Mindfulness can be thought of as the ability to still one’s own thoughts. It expands one’s awareness and ability to concentrate. The aggressive Type-A business personality may not intuitively embrace the idea of listening to self. The need to quiet the noise in our heads, to fully focus, to relinquish the speaker role, is essential for full understanding. Mindfulness is appreciated by the business community when it is recognized as a tool to accomplish their goals.

What package of listening skills do lawyers need?

Stephen R. Covey observed that “most people do not listen with the intent to understand; they listen with the intent to reply.” In fact, one of the skills of advocacy is “listening to reply.” Listening to reply is important because lawyers have to give advice, set an agenda, evaluate, and at times rebut.

But there is a complementary other half of that famous statement—the listening to understand. That second set of skills, inquiry, comprehending, supporting and uniting, is important because the courtroom is not the only legal context where listening happens. In these additional contexts understanding the other party is a powerful skill.

Think about who is encouraged to go to law school. If you are good at debate and rhetoric, people say, “You should be a lawyer!” But if you are a brilliant listener and can understand the human condition, no one says that. They say, “You should be a social worker or psychologist or go into business.”

Among this second set of skills, lawyers need the skill of inquiry. That’s different from interrogation. Inquiry sustains rapport during an interaction while uncovering new information. Lawyers also need skills that demonstrate comprehension such as paraphrasing what was said and sometimes what is not said overtly but implied such as the feelings, needs, and interests of the speaker.

Lawyers also need the skill of unifying parties’ discrepant interests. For example, in a gritty and messy divorce, lawyers benefit from the skill of keeping people at the table and working through the issues. In dealing with family conflict, the lawyer may need to listen through years of emotions and relationship issues. In listening to what lies below the objective statement, the lawyer can recognize possible solutions by understanding what is important to each party.

Why is it important to develop those deeper listening skills?

 Because there are so many benefits, for both tasks and relationships, when you listen deeply. Real listening means getting to a shared understanding between speaker and listener. Without that, we lose vast amounts of data that could help solve problems and resolve conflicts. Deep listening is worth the effort.

How do you know if you are good or bad at listening?

The short answer is you ask key people in your life for feedback: your colleagues, your family, and your friends. Our own perception of our listening skills is usually inaccurate. Ask questions like:

  • Do I focus on you and what you are saying when you want my attention?
  • Do I seem to understand what you mean rather than what I would mean if I had said the same thing?
  • Do I remember what you tell me?
  • Do you feel like I really listen to you?

Most people’s listening is unskilled. We rarely teach this in schools, and we are blind to the fact we are unskilled. Prior to my seminars, I ask people to rate how skillful they are as listeners. On average I get a rating of 80%. After the seminar I ask again. They laugh and tell me they did not know how much they did not know.

What is your advice for lawyers and other legal professionals?

Assume there is more than you are getting

When you are listening begin with the assumption that what you understand may not be accurate or complete. Create opportunities to explore a conversation more fully: “What did you mean?” “Tell me more.” “How does that work?” The beginning of listening is recognizing how likely you are to have misunderstood what the other person meant.

Appreciate the power of the pause

It may seem like a speaker is finished. They may use downward inflection in their speech and break eye contact but still have more to say. A listener can use the pause: count to ten and do a full inhale and exhale before going on or even asking a follow up. You will be surprised to discover how often more will come. This is particularly true when you are listening to someone speaking in a language other than their first language.

Try “the five why’s

This means asking “why” five times. This practice comes from the world of engineering. The theory is that the first time someone answers a question about “why,” their answer is probably superficial. Going beyond the first answer allows the speaker to find the root cause and gives them more time to connect ideas that they had not connected before. This technique is especially effective if you don’t use the word “why” which can cause people to feel defensive. Instead ask a “why question” saying “How come?” “What caused that?” or “What lead to that?”

What else?

Use this technique when you believe everything has been said and you are effectively done with the discussion. Questions such as “Is there anything else?” and “What else should we be talking about?” often elicit new information. It is shocking how often people will add new and often critical content at this time. There is a parallel in the medical field, “the door knob moment” when the doctor is about to leave the exam room and the patient shares new and important health information.

Build the listening container with your non-verbal presence

The way listeners use their face, eyes, body, posture, gesture and voice create a context for interaction. Your non-verbal presence can put people at ease or make them more guarded. People often enter a lawyer’s office with anxiety. They may not be happy to be there. They may be worried about the cost or the outcome. Many people are uncomfortable with conflict. It’s an unfamiliar setting and alien experience. In this context, listening is extremely important for building trust with new clients and ensuring existing clients follow your advice. It is a way for you to develop respect.

This Q&A has been condensed and edited for brevity.

Listen Like a Lawyer is currently working with Jennie Grau and several other lawyers/mediators/Certified Listening Professionals on a possible CLE session in Tucson, Arizona, in March 2016. More information will be forthcoming on the blog when details are more certain. 

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Speaking “business”

Listen Like a Lawyer is a fan of several lawyers who write and blog in ways that touch on listening skills, including but not limited to* Jeena Cho, Keith Lee, Lee Rosen, and Pam Woldow. Another highly, highly recommended blog resource on listening and lawyering is this six-part series from Mark Perlmutter on Trebuchet Legal.

And then there is Kenneth Grady, who writes at Seytlines (for Seyfarth Shaw) and often on Medium. His Medium post today, 5 Reasons to Become a Doctor Dolittle of Lawyer-Client Communications, should be read by any lawyer who interacts with business clients in any way.

Let me repeat that: if you are a lawyer and you ever deal with any client that runs a business, works for a business, or has a background or connection remotely related to business, read this post.

Years ago when I was a summer associate in my first week at a firm, my partner mentor shared the same advice he gave to all new and aspiring attorneys at the time: take more business classes. Now almost 20 years later, Ken’s post updates and magnifies this sentiment, pointing out that the gulf between attorneys and business clients has widened into an even broader gap. And it’s not something one class (or CLE, or blog post) can fix. It’s a cultural chasm, and those who bridge it will succeed.

One thing I really like about Ken’s post is how it presents real-world situations for lawyers to understand the more abstract yet crucial lessons of Daniel Kahneman’s Thinking, Fast and Slow. (This book popularized the finding that Israeli parole judges made different decisions depending on whether they were about to eat lunch, or had just eaten lunch.) Are lawyers guilty of retreating to their legal comfort zone? Do lawyers give easy answers to the wrong questions? Trying to understand a client’s real business issue, explore options, and perhaps create new options is certainly more difficult than quickly selecting and suggesting a commonplace legal approach.

(Thoughts on Thinking, Fast and Slow in the context of listening can be found on this blog here and here and here. Keith Lee also shared advice on getting to know your business client in his book for new attorneys, The Marble and Sculptor, reviewed on the blog here.)

Ken’s post touches on listening in a number of ways both abstract and specific. It exhorts lawyers to learn to “speak business” so they can truly understand their clients and help solve their problems. Of course that does not mean adopting the business buzz words that generate so much mocking. (For a more serious and historical insight into business jargon, see this article from The Atlantic.) Speaking business means tearing down—and not incrementally rebuilding—the “artificial ‘law versus business’ wall.”

One of the post’s anecdotes sums up the techniques and benefits of listening in a way that applies to all client conversations, whether corporate or individual. Its message of listening and problem-solving is a fitting close to this post:

One manager approached me with a request that our company immediately bring a lawsuit against a business partner for breaching a contract. Rather than discussing the lawsuit, we talked about the contract and the relationship. After a long conversation, the client opened up and explained that he had misread the contract years ago and had been overpaying the other party to the contract. The business person on the other side came into the relationship after the contract had been signed and just accepted the payments without checking the contract. After investigating a bit further, I called the general counsel of the other party and we were able to work out a solution fairly quickly.

  • This short list was not meant to be exhaustive; please share suggestions on other bloggers who consistently touch on communication issues for lawyers.
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How important is listening to new lawyers?

What do new lawyers actually do?

In a 2013 report, the National Counsel of Bar Examiners studied this question in detail by undertaking a very large survey of practicing lawyers (attempting to reach 20,000 lawyers although ultimately receiving usable survey data from 1,600). They result of this survey was the “Job Analysis Survey,” The key points of which can be found in this summary. (The survey methodology is described in the full report here.) The purpose of this survey was to provide “a job-related and valid basis for the development of licensing examinations offered by NCBE.”

Hat tip to Professor Ben Bratman of Pittsburgh for discussing this report in his recent post on bar-exam and legal-ed reform. Analyzing the results of the survey, Professor Bratman organized the numerous skills included in the survey into five groups: communication, analysis, research, project management, and professionalism. He suggested that this framework may be useful for developing learning outcomes in law school, particularly in response to new ABA guidelines.

The list of most highly rated skills and abilities was of particular interest here as well. Here’s the top ten:

Screen Shot 2015-10-12 at 1.06.53 PM

As you can see, listening was the third most highly rated skill, with respondents ranking it a 3.60 on a scale of 1-4 in terms of significance and 99 percent of newly licensed lawyers needing to perform this skill. (Apparently one percent of lawyers need to write but don’t need to listen, since the only skill that garnered 100 percent was written communication.)

In addition to the very broad category of “listening,” other related skills of interest included #2 (paying attention to details) and #10 (knowing when to go back and ask questions). Listening seems correlated with #5 (professionalism) as well. “Interpersonal skills” almost made the top ten, coming in at #13 with a 3.44 significance rating and 99 percent of newly licensed lawyers needing interpersonal skills.

Chart reprinted by permission of the National Council of Bar Examiners

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Speed of speech < speed of thought

You could certainly accuse this blog of idealism about listening. In contrast to e-mail, for example, just go and talk to the person. Through listening to their words and observing their body language, you can pick up so much more subtle and complete information: How do they feel about the subject? What are their expectations and how can you adjust your own work in light of those expectations? How important is this to them, anyway?

The downside of all that additional information you get from listening is . . . all that additional information you get from listening. People speak at about 140-180 words per minute, but on average, a listener can comprehend about 400 words per minute. Different sources offer slightly different numbers, but a common thread runs across all version of this statistic: the listener thinks faster than the speaker thinks.

That “thought-speech differential” or “listening gap” means the brain has extra capacity and WILL process information using that extra capacity. For example, the listener can process lots of non-verbal cues. Great listeners will observe such cues and use them to guide the conversation to fit their communication goals.

But the difference in how fast people talk and how fast they listen also creates the opportunity for the brain’s cognitive biases to operate and shape how the listener’s perception. I have previously written about some of the cognitive biases that may arise in particular when listening is involved. See Listen Like a Lawyer blog posts here and here and here covering cognitive biases such as the well-known confirmation bias.

To use Daniel Kahneman’s framework, the difference between the speed of thought and speed of speech is a space where “System 1” can roam. System 1 is the automatic, always-on system and also the one with all the cognitive biases (in lay terms, mental shortcuts). The more thoughtful “System 2” is where you find the careful “thinking slow” of his great book’s title, Thinking, Fast and Slow.

Whatever the task, the most effective communicators are able to use the speech/thought differential for custom listening, not listening fueled by standard cognitive biases based on the Kahneman formula “WYSIATI”—What You See Is All There Is. Effective listeners are able to suss out what is not happening, and what they need to ask.  Effective lawyers in particular will use their excess cognitive capacity to both attend to non-verbal cues and how the speaker presents, while also ignoring the cues and presentation to focus on the information and what else they need to know. As with all other lawyering skills, the most effective lawyer-listeners perform the task in a way that is both standardized to what they need to know and do as well as customized to the particular situation including strictly relevant facts and all the other seemingly irrelevant but highly important background and emotional factors affecting the communication experience.


Note: The original version of this post cited to sources no longer available, an article by Rita Hedley on Medium, and Ken Grady’s project for Seyfarth Shaw at Seytlines. Ken now teaches at Michigan State and writes on Medium here.

 

 

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Listening analytics?

One of my favorite sayings is from F. Scott Fitzgerald:

Slide1

Kenneth Grady’s Seytlines blog is an exercise in what Fitzgerald meant. In Grady’s essays on innovation in the legal industry—what it needs and where it is stagnating—human skills including “soft skills” have never been more valuable. Yet humans must use processes and systems and technology to avoid losing the competition to deliver value. Individual lawyers in all of their humanity have never been less expendable—or more.

Grady’s recent post Talking About Lawyer Performance illustrates the tension:

Providing legal services today involves much more than listening to a client’s problem and giving an opinion or delivering a document. It is a complex task in a fast moving environment that involves a much deeper and more nuanced understanding the environment in which the client operates. This isn’t an equation solely for large law firms and corporate legal departments, it is true throughout all levels of legal services delivery. Individuals’ lives are much more complicated today than 10, 20 or 30 years ago, so advising them isn’t as easy today as it was then.

This complexity manifests in the idea that legal-services delivery should be examined and broken into more distinct parts. This idea is pervasive throughout the legal-innovation conversation, and I’d like to think more about how it affects listening.

There may be a tradeoff in client satisfaction unless technological innovations are built with empathy and surgically precise understanding of how to approximate human interaction, and when actual real-time conversations and face time are crucial. On the other hand there will be a gain in client satisfaction if perceived unnecessary conversations where the client keenly feels the billing clock ticking are reduced or even eliminated. As I said, I’d like to think more about the delivery questions—and mostly I would just like to learn from those such as Grady and Patrick Lamb and Jeff Carr and others, the gurus in this area.

Beyond the questions of legal services delivery are deeper questions about what an individual lawyer does. (See Grady’s post on Defining the Unique Role of the Lawyer.) The analytical and problem-solving contributions are inextricably wrapped in the soft skills used to deliver them. As Grady has written elsewhere, “During the next decade, the skills that make up personality will play an increasingly important role.”

But do not believe that means the lawyer is unique beyond measure. Even the most human of human skills can benefit from systems analysis because even the most human of interactions can be measured:

Alex “Sandy” Pentland, who directs MIT’s Human Dynamics Laboratory and the MIT Media Lab Entrepreneurship Program, is one of the leaders in the people analytics field. His team developed sociometric devices—smartphones using special software—that teams of employees would wear during the day. The devices measured proximity to other employees, who was talking, engagement levels, and other data points. They did not capture what was being said. But, from this data Pentland’s team could determine which group dynamics led to more creativity or productivity. By altering the work situation, such as aligning work breaks rather than staggering them, Pentland’s team drove performance improvement along many metrics.

This was the part of the Lawyer Analytics post that really stood out. This blog has talked at various times about the problem of measuring listening. If you can’t measure it, you probably can’t assess it in a meaningful way. Perhaps these “sociometric devices” are the beginning of a solution to the problem.

When I first got started blogging here, I read a difficult but rewarding academic book, Talk and Social Theory: Ecologies of Speaking and Listening in Everyday Life, in which a scholar, Frederick Erickson, analyzed detailed transcripts of several conversations recorded in 1974: a blue-collar family at dinner, a college counselor and a student who was eligible for the Vietnam draft, a combined kindergarten-first grade class, and a medical resident and intern diagnosing a difficult case. He parsed every last detail of these conversations and even showed how they could be rendered with musical notation:

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This book is where I learned the concept of the “conversation turn,” which essentially means taking over or handing back the conversational flow to your conversation partner. (See prior post on the “turn sharks” in law school.)

How do a bunch of random conversations in 1974 relate to legal skills today? Some things don’t change: Being a good listener means mastering conversation turns to keep the conversation going without taking over.  Just refer to Pam Woldow’s lengthy discussion of “manterruptions,” and the gender imbalance in who does the interrupting versus gets interrupted, to understand the relevance of conversation turns today. (Part I of Woldow’s series is here.)

The conversation studies in Erickson’s book were fascinating but clearly expensive to create and difficult to replicate.  With newer and more affordable technology like the sociometric device described in Lawyer Analytics, people won’t need to be invited to a scholarly study to get this kind of data. (To see the logical and alarming extension of these possibilities, read this article on “searchable speech.”)

The possibilities of these devices inevitably bring to mind FitBits. Ken Grady’s boss Stephen Poor has already covered that ground for lawyering generally in “FitBits, Data and Lawyers.” On quantifying communication specifically, it seems pretty likely that we will soon have relatively affordable “FitBits” for listening.

Emotional intelligenceLegal communicationLegal writing

Lucky listening object?

This summer I had the pleasure of reading Between You & Me: Confessions of a Comma Queen, by a longtime copy editor at the New Yorker, Mary Norris. This book is a pleasure, something you can tell just by the epigram:

IMG_3693

Later on, Norris expounds at length upon the editor’s pencil—not in a Platonic sense, but in the sense of the actual pencils and pencil sharpeners she uses for her tasks. Her favorite is the Blackwing, a premium and pedigreed pencil that promises “half the pressure, twice the speed.” (The smooth writing experience will appeal to certain pen fanatics as well.)

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On Norris’s recommendation, I ordered a box of Blackwings, specifically the Palomino Blackwing 602 model. They really are pretty awesome, from the silky flow onto the paper to what Norris describes as the chiclet-shaped eraser. Her loving and detailed description of trial and error before finding the Blackwings also imbued them with a special sense of purpose. As a legal writing professor, I began to think about whether law students would benefit from having some sort of totemic editor’s tool. This does seem appropriate, since lawyers should be editors as much as writers.

And as with many of may daily activities (see Orangetheory post from last week), I wondered whether this idea of a special writer’s tool could apply to the complementary skill of listening. What could lawyers and legal professionals use as an expert tool of the trade, giving their listening a special sense of purpose? The ideal tool would be subjectively powerful for the individual using it and carry some historical or contextual significance as well to help the individual perform the task in the aspirational spirit of the profession. (The Blackwing website promotes a myth like this through the pencil’s history: discontinued in the 1990s and then brought back in the 2010 after some were paying up to $40 per pencil for remaining stock.)

But listening is a receptive communication channel, in contrast to writing and speaking. What does the idea of a special tool even mean for receiving information rather than making it?

The first thing that came to mind is the art of taking notes. It’s not listening exactly, but it’s an artifact of listening. When I asked academic-support expert Moji Olaniyan how she works with students on their listening, she said the first thing she looks at is their notes, and they way they take notes. (More specifically, Moji Olaniyan is Dean Olaniyan, the Academic Dean for Academic Enhancement at the University of Wisconsin.)

One revered method for taking notes is the Cornell method, described by Lisa Needham in an updated Lawyerist post just this week. The note-taking method itself does not demand any particular purchase since any paper can be used with a few lines drawn to create a left margin and summary at the bottom. However, the Levenger notebooks are one way to spend on this method if desired. For practicing lawyers, of course note-taking does not go away after law school, although it changes form. Lisa’s post offered some interesting glimpses into what note-taking looks like in law practice.

Note-taking can also go multimedia such as with a Livescribe pen that records while you write. This pen may not make listening feel sacred and special the same way the Blackwing works for Mary Norris. Rather I suspect it would make one feel a tiny bit like an engineer (or spy?), which could be good in a different way—assuming it’s legal and culturally acceptable to record audio wherever you may use it.

But note-taking is just a proxy for listening, and only in situations where note-taking is socially acceptable.

What about the listening act itself—the experience of taking in the information, and the speaker’s perception of being listened to? In social situations, people may grasp a glass of wine or a Coke, a reminder in the hand of social cues to follow. Grasping a warm cup (including but not limited to a cup of coffee) may help with social interactions, scientific research has suggested.

On the other hand, have you ever been in a conversation where it seems to be going pretty well and then you see the other person’s eyes dart sideways, as if looking down at a phone—even if they’re not actually doing so? They may be drawn to another “talismanic,” “fetishistic” and “fanatical” object: the “amulet” of the smartphone.

Client developmentCollaborationEmotional intelligenceGenderLeadership

Why it’s so hard to be understood

Among Listen Like a Lawyer’s summer reading is Heidi Grant Halvorson’s No One Understands You and What To Do About It (Harvard Business Review Press 2015). Halvorson is a professor at Columbia Business School; here she is interviewed by CBS News about the book.

51nTzV8T70L._SX328_BO1,204,203,200_The book’s focus is on understanding how others perceive you, so that you may better manage how you are perceived. It’s not focused on the legal industry, but it discusses psychological dynamics that certainly apply in law offices as well as any organization. For lawyers, law students, and legal professionals, I would say this book is most useful for the following goals:

  • exploring the dynamics of interviewing process
  • delving beyond the surface in what is happening at work, particularly in work teams and with organizational clients
  • improving how one is perceived by a supervisor or work team
  • lightly exploring broader “psychology of leadership” concepts in the business world

Across situations, cognitive biases on all sides create distortions and disconnects in how someone thinks they are perceived and a perceiver’s actual impression. For the person communicating a message, the “transparency illusion” creates the overly optimistic expectation that others do in fact understand our intention. This illusion comes about in part from overconfidence about how clearly we communicate:

Your emotions are less obvious than you realize, and your face is less expressive too. Studies show that while very strong, basic emotionssurprise, fear, disgust, and angerare fairly easy to read, the more subtle emotions we experience on a daily basis are not.

On the receiving end, the well-known confirmation bias leads people to interpret information as confirming what they already think. These types of biases are semi-automatic and hard to combat, although more effortful, careful thinking in the “correction phase” can correct for distortions. (This is what Daniel Kahneman calls System 2.)

After laying this groundwork, Halvorson spends most of the book talking about the “lenses” that affect first impressions, before any intentional “corrections” can take place. The three key lenses are:

  • the trust lens

Trust is based on two factors—warmth and competencethat may sometimes be at odds with each other. More on that in a moment.

  • the power lens

To get the attention of a powerful person, it’s all about showing your “instrumentality.” As Halvorson writes, “It’s not about being niceit’s about being useful.”

  • the ego lens

The ego plays games with perception so that the perceiver comes out on top. Understanding ego dynamics can help a person avoid being seen as an ego threat. The least manipulative-sounding of these is focusing on how the speaker and perceiver are members of the same group (such as alums of the same school or members of the same profession).

These lenses are at work in difficult situations that lawyers and legal professionals face every day. A few that come to mind: clients who resist signing settlements that are strongly in their favor; supervising lawyers who want to control conversations with clients; legal professionals who gain a reputation—either for good or poor work—that seems difficult if not impossible to alter.

All of these lenses could help with the goal of listening, in that knowing about them can help a listener understand better what the other person is saying and why. Developing trust by cultivating warmth was where listening came into play explicitly. Some warmth tactics seem obvious: make eye contact, smile, and focus. But Halvorson cites studies that “people generally have no idea when they are not doing these things.” One practical theme of the book is just to ask friends and family about how you come across: do you make eye contact? How do they perceive you?

A potential difficulty for lawyers is the conflict—or at least perceived conflict—between what it takes to show warmth versus competence:

When people are trying to appear warm, they are agreeable, engage in flattery, make kind gestures, and encourage others to talk (i.e. they are good listeners). But when they want to appear competent, they do the opposite–speaking rather than listening, focusing the conversation on their own accomplishments and abilities, and challenging the opinions of others as a demonstration of their own expertise. In fact, both consciously and unconsciously, people tend to use this knowledge and play down their competence (i.e., play dumb) to appear warm, and vice versa.

 

Halvorson notes this conflict is a particular conundrum for “nontraditional women” who may experience particularly virulent sexism for perceived failure to adhere to stereotypes about women. This is an example where she nods to the deep and troubling excesses of cognitive biases, but this book is not the place to look for introspection or sensitive exploration of stereotypes and what to do about them.

Rather, it’s a pragmatic toolkit for the person who wants others to “get” them. For trying to resolve the warmth/competence conflict, Halvorson suggests the “moral” aspects of warmth do not conflict with competence. These aspects include being “courageous, fair, principled, responsible, honest, and loyal.” She notes that in a brief interview, it is a lot easier to show your sense of humor than that you are principled. But overall, perceived—and actual—trust is built by “being someone the perceiver can always count on to do the right thing.”

Halvorson also has chapters for difficult interactions such as those with “vigilant risk-mitigators” and “aloof, avoidant perceivers.” She closes with a relatively short treatment  seeing others more clearly (e.g., “take more time” and “consider evidence for and against” a hypothesis) and even seeing yourself more clearly. A common thread throughout the book is to ask friends, family and (if you dare) colleagues how you come across. If people consistently perceive you in ways you don’t intend, then reading, re-reading, and working on the ideas in this book may be in order.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Client developmentEmotional intelligenceLaw practiceLegal communicationLegal writing

New proof about “sounding smart”

Every time a lawyer communications, that lawyer must choose not only what to say but how to say it—in person, phone, e-mail, or something else.

Speaking and listening obviously take longer and may seem inefficient. Writing (such as e-mail) can reach a group of people instantly and allow them to access the information at a convenient time, also creating a record all parties can use and refer to later.

Courtesy Flickr/Horia Varlan/CC by 2.0

Courtesy Flickr/Horia Varlan/CC by 2.0

But e-mail just isn’t as accurate at conveying meaning.* Anyone who has had an e-mail misunderstanding has experienced what the academic research shows:

Because of the paralinguistic cues in voice, such as intonation, cadence, and amplitude, observers who hear communicators guess their actual thoughts and feelings more accurately than observers who read the exact same words in text.

This is just the background in a new study conducted by Professor Juliana Schroeder and Nicholas Epley at the Booth School of Business (University of Chicago) (sub req’d for link). There’s actually another surprising disadvantage of writing, compared with speaking the same material to a listener.

In that study, MBA students prepared pitches on why they should be hired, and then delivered them either orally or in writing. The results were pronounced:

[E]valuators rated a candidate as more competent, thoughtful, and intelligent when they heard a pitch rather than read it and, as a result, had a more favorable impression of the candidate and were more interested in hiring the candidate.

Why is this? It has to do with cues provided by the voice, and heard by the listener—cues that are lacking in writing. The study summed up the effect:

The words that come out of a person’s mouth convey the presence of a thoughtful mind more clearly than the words typed by a person’s hands—even when those words are identical. Across five experiments, evaluators who listened to job pitches were consistently more interested in hiring the candidates than were evaluators who read identical pitches. A person’s voice communicates not only the content of his or her thinking, but also the humanlike capacity for thinking.

The effect persisted whether the written material was prepared for purposes of reading or speaking. It persisted in one form or another for “evaluators” drawn from a general audience at a Chicago museum as well as from recruiters at Fortune 500 companies. The study also asked trained actors to deliver the pitches in another sub-set of the study to glean whether professional voice skills were the deciding factor. They weren’t.

In an article on the study—”The Mouth Is Mightier than the Pen”—the New York Times pointed out that study authors did not control for the quality of the writing itself. Study author Dr. Epley told the Times he assumed the MBA students were “better-than-average” writers, given that they were enrolled at a top business school. But the study’s findings turned out to be greatly surprising to the students themselves: responses to a survey question showed they did not expect their spoken pitches to be so much more powerful in conveying intellect.

The study does not indicate it would be “impossible for a talented writer to overcome the limitations of text alone.” Rather, the study participants did not predict or expect that voice would provide such an advantage, and thus in their written pitches did not spontaneously try to overcome any deficit from that communication medium.

The study has a number of implications, for lawyers and anyone who conducts business in a variety of media—or anyone who cares about making an impression about their intellect:

[T]ext-based communications may make individuals sound less intelligent and employable than when the same information is communicated orally. The findings imply that old-fashioned phone conversations or in-person visits may be more effective when trying to impress a prospective employer or, perhaps, close a deal.

* Among e-mail’s other well-documented disadvantages such as creating a sort of tyranny of distraction.