Category: Legal education

Listening Skills in the Law School Classroom

Jennifer Romig4 Comments

This post is for law professors, educators, and anyone interested in listening-related skills training…

Listening contributes to law students’ success in many ways. From participating in class discussion to doing good work in clinics to writing an exam that reflects what was discussed in class, students who listen effectively are in a better position to succeed in law school. They are also in a better position to effectively handle job interviews and real assignments on the job.

Law professors therefore may want to spend some time emphasizing listening skills, either explicitly or implicitly. Here are a few ideas for integrating listening skills into any law school class. Please share feedback and more ideas in the comments.

  1. Model a client interview.

Modeling means showing how to do something the right way. It could also mean showing how to do something with a mix of successful and less successful moments, then discussing the challenges and the process. Either way, students can begin to learn by seeing and hearing models in action.

Modeling a client interview is an excellent way to demonstrate effective listening. “Modeling of listening techniques makes effective practices visible to students,” writes Professor Neil Hamilton writes in his law review article Effectiveness Requires Listening: How to Assess and Improve Listening Skills. (Professor Hamilton’s article was foundational for this blog four years ago and remains so today.)

Modeling an interview during class time would be a significant investment of class time. For teaching in clinics, this investment should pay off directly. Students who have seen and discussed effective listening during an interview are far more likely to do the same in their own work with clients.

In doctrinal classes, a model client interview would be unconventional but could demonstrate good lawyering (including listening) while also covering doctrinal material in a vivid way. One specific idea comes to mind: remedies. Clients may feel they are entitled to some particular measure of compensation that the law actually does not allow. A client interview could bring out the client’s ideas of what he or she deserves, including the lawyer’s careful listening even where the client’s damages theory cannot be supported by law. And then the discussion after the interview could address the substance of remedies as well as the interpersonal challenges of communicating with clients.

  1. Offer listening conferences with assessment and feedback.

The next step after modeling a skill is letting students try it. A “listening conference” is one way to do this, as suggested by Hamilton in his listening article. The listening conference would be a chance for students to role-play a client interview or talk about a doctrinal area of law, and then get feedback on listening.

The conversation partner would be a professor (if time permits) or perhaps a teaching assistant, or a student’s mentor in the legal community. Afterward, the conversation partner would provide feedback and assessment of the student’s listening. The feedback could involve a play-by-play of certain key moments:

  • “I felt like you really heard me when I was talked about xyz because your eye contact and body language were very receptive.”
  • “When I mentioned xyz, it seemed like you started thinking about what you were going to say.”
  • “You used active listening techniques when I described my goals as a client, but you didn’t restate one aspect of my goals, so I wasn’t sure you totally understood that part.”

The assessment could provide more structured feedback on criteria for listening. The criteria’s substance is a topic for future blog posts here. Hamilton has some sample assessment rubrics such as a student’s performance during a client interview.

  1. If you use Power Point, use it to promote listening and learning.

Reading text and listening to words simultaneously just does not work in the brain. The science suggests that far from reinforcing cognitive connections, these redundant inputs impose an “extraneous cognitive load” that interferes with learning.

That is one of many reasons it’s such an awful idea to use text-heavy Power Point slides. Use a blank placeholder slide in every presentation, advises Professor Paul Zwier of Emory Law School, author of Power Point 2003 for Professors. Navigate the Power Point to the blank backdrop when you want students to focus entirely on listening.

To promote effective listening, consider abandoning the bullet points, at least on what you show during a lecture. Intensely visual slides such as what you can make with Haiku Deck or by downloading images from Creative Commons are a great backdrop to help the audience both listen and remember what you say. Seth Godin recommends this best practice in his e-booklet “Really Bad Power Point (and how to avoid it)”:

You can use the screen to talk emotionally to the audience’s right brain (through their eyes), and your words can go right through the audience’s ears to talk to their left brain.

  1. Enforce a classroom 5-second rule.

Another common issue with listening in the classroom is that students may not have enough time to remember—much less process—what was said at key moments. The bounds of working memory are an inherent limitation on effective listening. And in the law school class, the words in a lecture and discussion sometimes come so fast and furious that sometimes students may leave the class with the feeling of “What just happened?”

One protocol that can dramatically improve listening is to impose a “5-second rule”: everyone must wait 5 seconds after a speaker has concluded speaking before raising a hand or otherwise continuing with the conversation. Mark Weisberg and Jean Koh Peters suggest this method in their paper Experiments on Listening.

They report that professors meeting with other professors in small groups found an “astonishing” benefit to this protocol. Participation was both broader—no longer favoring the gunners and turn sharks—and more thoughtful. The same benefit could extend to a law school classroom.

  1. Assign students to listen to a particular case or legal authority in addition to reading it.

Various software, browser apps, and websites can read text out loud. Hearing an entire case read out loud, rather than silently reading it on the page, is a big investment of time. But intensely engaging with one or two cases this way could assist learning, especially for beginners. To use one common error students make when learning the structure of court opinions, where does the review of precedent end and the court’s own decision begin? I believe that listening to the case could help them slow down and recognize the different components of the opinion.

(And please don’t ignore this suggestion because you think “some people aren’t auditory learners.” The idea of a learning style may reflect an individual’s desired learning preference but not necessarily a more effective way for that individual to learn any given material. See here and here.)

The suggestion to listen to a case is better suited for students’ own time outside of class. Class time could also involve short breaks from the lecture in which students read to one another. Bear with me here: Performing the law with a speaker and listener in this way could set up the significance of statutory language or a short segment of a case. The student reading the case out loud would have to decide how to inflect the reading, and the student doing the listening would get the benefit of hearing the words. It may feel forced and awkward to the students and perhaps to the professor as well, but they almost certainly would remember the language better as result of the process.

Better listening leads to better learning as well as better lawyering. These exercises are just a few ideas for focusing on listening in the law school classroom. The articles cited here contain many more ideas, and please also share ideas in the comments to this post.

Non-Verbal Persuasion

Jennifer Romig1 Comment

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

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

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

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

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

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

Carroll_Shana

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

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

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

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

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

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

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

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

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

 

Listening begets listening

Jennifer Romig1 Comment

Thanks to Professors Alexa Chew and O.J. Salinas for their guest post below on fostering an open dialogue on diversity and inclusion in law schools. They will be presenting on these issues this week at the Association of Legal Writing Directors’ 2017 conference.

Law schools throughout the country continue to face issues related to diversity and inclusion. Students may feel unwelcome or marginalized at their law schools, and these feelings can impact their academic performance. This isn’t news, and most people want to foster a more inclusive law school environment.

chewBut what might be news are the details of these students’ individual experiences or the scope of these negative experiences within a student body. This matters because a precursor to making a law school more inclusive is understanding how students are feeling excluded. It also matters because if you’re not hearing those details, you might think that your school doesn’t have an inclusion problem. Or worse, you might be unknowingly contributing to it.

Whether you know it or not, your school probably does have an inclusion problem.

There is likely a group of faculty and staff at your school who know this well because they hear more than their share of students’ unhappy stories. Being one of those “go-to” folks is a blessing and a burden. It is a gift to be trusted with the intimate details of someone’s misery, to be present with another person’s vulnerability, to hear things before they need to be shouted. But it can also take an emotional toll on the listener. This is especially true when the student’s experience overlaps with the listener’s—for example because both are racial minorities or the first in their family to attend college.

A thing about burdens, though, is they get lighter when more people take them on. Not only that, but sharing burdens builds community.

salinasResearch suggests that the differences or misunderstandings that divide us can be lessened when we speak to each other and get to know each other a little more. Inviting students to share their stories and listening to those stories can improve those students’ well-being, especially if they feel that they haven’t been listened to in the past.

Here are some ideas for helping to invite these conversations:

  • In an individual conference or office hours, you might ask a student open-ended questions about how school is going. Listen to the answers non-judgmentally. Observe the student’s body language. Put on your lawyer hat and ask follow-up questions based on what you’ve heard and seen. (But remember it’s not an interrogation!)
  • In class, you could share a personal anecdote that suggests you have some experience with feeling like you don’t fit in. Explain that it’s common for law students to feel like they don’t belong. The reasons might be diverse, but the feeling of being an outsider is shared. This common ground can form the foundation for further conversation.
  • In class, you could issue a more explicit invitation to students–let them know that you are genuinely interested in their law school experience. Let them know that they can feel free to talk with you about non-academic concerns. (But be aware of reporting requirements at your institution. If you get the sense that a student might want to disclose information that must be reported, for example to your institution’s Title IX office, you’ll need to stop the conversation and advise the student of your duty to report certain information. This might be welcome news to the student, or it might not. The student can then make an informed choice about what else to share with you.)
  • Host a forum where students share their stories related to diversity and inclusion. A physical forum can foster real-time dialogue about students’ experiences and potential actions to address their concerns. The presence of faculty, staff, and administrators at a forum can expand the conversation by signaling that these issues matter and should be taken up by the whole community.

As readers of this blog surely know:

Listening begets listening—the more you practice, the better you get.

When it comes to conversations about diversity and inclusion, you might be afraid of saying the wrong thing. That’s a reasonable fear, and we’ve both said the wrong things during these conversations. It doesn’t feel great. But sometimes there isn’t a right thing to say. Sometimes the best you can offer is your time, your attention, and your ear.

If you are attending the ALWD Conference this week, we invite you to attend our session on Wednesday afternoon at 2 pm, where we will be hosting a conversation about these issues. The 2017 ALWD Conference is dedicated to discussions surrounding diversity and inclusion, as reflected by its theme: Acknowledging Lines: Talking About What Unites and Divides Us.

Thanks again to Alexa Chew and O.J. Salinas of the University of North Carolina-Chapel Hill:

Alexa Chew is a Clinical Associate Professor of Law at UNC Law. You can also find her on twitter at @aznchew.

O.J. Salinas is a Clinical Associate Professor of Law at UNC Law. You can also find him on twitter at @ojsalinas.

 

Stereotype threat

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Habit-forming classrooms     

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How much time do law students spend in class? I’ve been thinking about the behavioral implications of so much time in front of laptop screens. I look forward to reading but don’t actually need to read Irresistible: The Rise of Addictive Technology and the Business of Keeping Us Hooked to know that looking at a screen is some kind of behavioral habit. And the time students spend in law-school classrooms may be feeding that habit.

Yes, some professors ban laptops. Most do not. Yes, some law students use their laptops just exactly like a yellow legal pad and quill pen, never once checking any updated social media feed during class. But most do not. So just how much time do law students spend in front of laptop screens during a typical three-year JD program?

An estimate can be derived from ABA regulations for law schools, which I learned more about at the Legal Writing Institute’s recent conference for moot court advisors helped to answer this question. ABA Standard 311 requires 83 credit hours to graduate, 64 hours of which must constitute  “attendance in regularly scheduled classroom sessions or direct faculty instruction.” The broad topic of ABA requirements came up at the moot court conference because within this 64 hours, students graduating in 2019 and after will need six hours of experiential-learning credits to graduate. Moot court advisors from Oklahoma City College of Law, Mississippi College of Law, the University of North Dakota, and Ohio State University talked about the new ABA requirement for experiential learning.

That number—64 hours—is the key to answering my question about total laptop time.

Let’s use the ABA’s numbers to assume that a student takes only 64 classroom hours to graduate and the rest of the 83 comes from extracurricular activities, externships, and other types of educational activities.

Out of the required 64, let’s further assume six of those are experiential learning in a clinic or simulation, in which students should be closing their laptops and working closely with people a substantial portion of that time.

That leaves another 58 hours of course credit in lecture and Socratic law-school classes. Let’s assume the student uses a laptop during all of that time. Is this an unrealistic assumption? I don’t think so, but you can easily adjust the math below to reach estimates for 80 percent laptop usage or 60 percent laptop usage.

If we do assume the student opens a laptop for notetaking during all of these class sessions throughout law school, what’s the total time that student’s eyeballs will be on the screen?

A credit hour is 50 minutes of classroom time per week plus two hours of preparation time (ignored for purposes of this calculation). Each semester has 15 weeks, but one of those weeks can be used for exam review and exam taking. Thus the total amount of classroom time can be calculated as follows:

50 minutes a week,

14 weeks a semester,

multiplied by 58 credit-hours.

What’s the mathematical result?

40,600 minutes

677 hours

84-and-a-half business days

That’s a lot of time with eyeballs on screens. Taking notes in a law-school lecture may not be habit-forming like Candy Crush, but it’s still a behavior. Repeat a behavior enough, and you have a habit (colloquially defined). Walk into the room, take out the laptop, pop it open and turn it on. When the professor begins to speak, direct attention to the front of the room, and start typing. Listen for a while and keep up with class, typing notes in bullet and sub-bullet form vertically down a Word or notes page of some sort. Then a thought pops up about an expected email reply. Open a tab to quickly check. Keep one ear on the professor’s words and get them down. Close the email tab and return to the notes doc. Rinse and repeat.

The 58 credit-hours of classroom time make up almost two-thirds of a student’s academic time in law school. Assuming that a student gets excellent training and practice on interviewing (including listening skills) somewhere in the other 35 credit-hours, can that training and practice overcome the weeks, days, and hours spent looking at the laptop? Of course people use different communication skills and tools in a large classroom and a one-on-one interview. But are these communication habits so easily siloed and separated? What is the leakage—if any—between classroom listening habits and professional listening habits? As Will Durant said in paraphrasing Aristotle’s Nichomachean Ethics, “We are what we repeatedly do.”

This month tens of thousands of law students are shaking off their final exams and going out into the “real world” for summer work. At courts, agencies, businesses, and law firms, these personal laptops will largely be left behind. But what habits won’t be?

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Here are just a few of many recent articles on laptops in the law-school classroom:

Kristen Murray, Let them Use Laptops: Debunking the Assumptions Underlying the Debate over Laptops in the Classroom

James Levy, Teaching the Digital Caveman: Rethinking the Use of Classroom Technology in Law School

Steven Eisenstat, A Game-Changer: Assessing the Impact of the Princeton/UCLA Laptop Study on the Debate of Whether to Ban Student Use of Laptops during Class

 

 

 

Deliberate practice and lawyering skills

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This past weekend, the Legal Writing Institute hosted its second Biennial Moot Court Conference at John Marshall Law School in Chicago. Several of the talks touched on listening-related themes. Kent Streseman of the Chicago-Kent College of Law explored the concept of “deliberate practice” for moot court competitors. His summary of the tenets of deliberate practice could be useful for anyone who wants to improve their mental dexterity and ability to think on their feet. 

I once heard Rutgers Law professor Ruth Anne Robbins refer to moot court with an analogy to “muscle memory.” In sports, building up muscle memory can be a good thing—or a bad thing. If you learn how to swim the wrong way and then repeat the mistake over and over, she said, you won’t become a better swimmer no matter how much you practice. (Likewise for lawyers preparing presentations and arguments, creating wordy PowerPoint slides and then silently reading them to yourself may not be the path to great public speaking.)

In his Chicago talk, Streseman made a related point about sub-optimal practice: Even practicing correctly but in the standard, same way over and over is not going to produce results, especially if it’s ill-informed to begin with. Repetitive practice doesn’t help a learner progress beyond a certain fixed point, and in fact, “skills tend to regress.” 

The “gold standard” of preparation is “deliberate practice,” a concept from Anders Ericsson’s work summarized for a popular audience in Ericsson’s Peak: Secrets from the New Science of Expertise. The purpose of deliberate practice is to yield expert performance:

The hallmark of expert performance is the ability to see patterns in a collection of things that would seem random or confusing to people with less well-developed mental representations.

To build up these mental representations, you need deliberate practice. In his talk Streseman outlined some of the conditions of deliberate practice:

  • The practices must be challenging, with the learner giving their full attention to a task demanded beyond the edge of their comfort zone.
  • The feedback needs to be informed by experts’ accomplishments and understanding of what they themselves do to excel.
  • The feedback must be followed by the opportunity to modify the performance in response, and to recover and reflect on the practice.

These types of focused practices lead to more effective mental representations of the argument in the competitor/advocate’s own mind. And having those effective mental representations mean the competitors can react more quickly to questions and make better decisions on what to say next and how.

The closest connection to listening seemed to be the crucial fact that deliberate practice requires the learner’s full attention. Moreover, the learner has to actually listen and adjust to the feedback provided. Speaking and speaking and speaking again without attention to feedback may be practice, but it’s not deliberate. You can do that in front of a mirror or your dog, and we all know sometimes that’s what a person needs to initially prepare. As beginners approach a task, they may need some repetitive practice with no feedback to get into their comfort zone. Once there, they can then start to push beyond that zone.

But rehearsing to a dog is too comfortable. It’s not deliberate practice, as the dog’s feedback is not informed by experts’ accomplishments and methods of excelling. My dog has been a lawyer’s dog most of his life, spanning three owners with a variety of practice experience both civil and criminal. All three of these lawyers were moot court types. But the dog still can’t coach moot court effectively.

Thanks to Kent Streseman for his talk on deliberate practice and moot court, and to John Marshall Law School and the Legal Writing Institute for hosting the conference.  I look forward to reading Peak and sharing any additional insights from delving into it.  I also hope to share more posts from the conference with additional connections to listening. Until then, you can access tweets from me and others at #LWIMootCourt.

 

Let the ice cube melt

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The other day I had to have my eyes dilated. As they slowly came back into focus, I tested them on this week’s issue of The New Yorker. One of the essays focused on Allison Janney, currently starring on Broadway in “Six Degrees of Separation.” Janney’s character in the play owns a Kandinsky (Wassily Kandinsky, one of the first abstract artists of the early 20th Century), and in the New Yorker essay Janney was viewing a Kandinsky at the Guggenheim as she gave the interview:

On her phone, she pulled up a Kandinsky quote from the play: “It is clear that the choice of object that is one of the elements in the harmony of form must be decided only by a corresponding vibration in the human soul.” She grimaced. “A sentence like that is so hard to understand,” she said. “It’s like an ice cube that hasn’t melted. That’s the way my father used to talk about learning the piano or learning a language. He said, ‘It’ll melt, just give it time.'”

Kandinsky’s actual quote seemed like a legal writing professor’s dream, in terms of editing issues to attack:

  • throat-clearing language (“It is clear that…”)
  • a gaggle of prepositional phrases (“of…of…in…of…by…in…”)
  • passive voice, of course (“must be decided only by…”)

But underneath the verbiage is the artist’s essential concept. How could that wordy sentence be rewritten without changing the concept? I came up with the following:

“The artist must decide on elements in the harmony of form only by seeking a corresponding vibration in the human soul.”

This edit cuts 10 words. Is it better? Even though it reflects standard writing edits, it changed some of the original. Most obviously, obliterating the passive means adding an actor. But maybe Kandinsky wanted to hide “the artist” by using the passive. The most concrete thing in the whole sentence is the last thought—“a corresponding vibration in the human soul.” Using abstract, passive, verbose language leading up to the final culminating moment—“the human soul”—is itself a form of verbal artistry.

This conceptual verbal artistry is at home and welcome in art-theory discourse, not so much in legal writing. The values of plain language and efficient writing have little use for a quote like “It is clear that the choice of objects . . . blah blah blah.”

So after reading Kandinsky’s quote in the essay, I was ready to move on to another portion of the magazine. But luckily, I finished the paragraph, catching Allison Janney’s wonderful turn of phrase quoted from her father:

“It’ll melt, just give it time.”

I think she meant that after effort and thought by the person approaching this sentence, the sequence of words will break down. They will “melt” into meaning in the person’s mind. The sentence itself doesn’t change; after all, that’s what Kandinsky meant for it to say. But the person encountering the sentence can melt it in their own mind so it’s not so rigid and foreboding.

How does this melting occur? As Janney’s father advised her, through time and patience. Not through focused effort directly lasered onto the ice cube. An ice cube melts effortlessly through the passage of time.

This ice-cube metaphor seems to me a wonderful metaphor for learning the law as well. For new law students faced with old cases and new concepts in arcane and twisted language, at times the only logical reaction is to grimace—just as Janney did when she read the Kandinsky quote. And of course you can apply techniques, tips, and tricks (as shown earlier in this post) to break down what you hear and read into something you can actually understand and use.

But really, ultimately the only valid long-term strategy is letting the ice cube melt. It melts slowly and imperceptibly. But then, at some point, something has happened. You can speak the language, and you can play the instrument. The ice cube has melted. You are thinking like a lawyer.

 

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Lorena Biret/Flickr/CC by-SA 2.0

 

Postscript on “um”

Jennifer RomigLeave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Future trial lawyers, take heart

Jennifer RomigLeave a comment

Listen Like a Lawyer will be delving into communication and writing in the next few posts. One reason this blog is generally dedicated to listening is that there are already many excellent legal-writing blogs available for the legal community. (For example: Forma Legalis, Lady Legal Writer, Law Prose, Legible,  and Ziff Blog, just to cite a few.) The writing-related posts here will connect to broad communication themes such as voice, empathy, and the relationship between senior and junior lawyers emerging from a lot of writing and talking as well as reading and listening.

Law professor Philip N. Meyer once did an unusual thing: he spent thirteen weeks observing a federal jury trial on a daily basis. Day after day throughout an entire summer, Meyer sat as a watcher and listener, taking in the spectacle of the trial and everything it entailed—from the painful moments to the surprisingly lighthearted. Leaving court late at night, he spied the lead defense lawyer sitting alone in a car in a remote parking lot with the windows rolled up, practicing his closing argument. This experience is just one of many inspirations for his book Storytelling for Lawyers (Oxford 2014).

Storytelling for Lawyers has neither a chapter on listening nor an index entry on listening. The book is about talking and writing—in other words, producing—narratives, much more than listening as such.  But Meyer mentions listening on page 2, talking about his work as a trial lawyer:

I learned to watch and listen to how my audience listened to me, and I would respond to their concerns, reshaping my stories to fit the shape of their imagining.

The book is about crafting stories that will resonate with audiences, whether at trial or in motions practice. So I recommend it.

But now let me get to the point of this post and why I titled it “Future trial lawyers, take heart.” Meyer teaches a variety of classes including doctrinal classes in criminal law and torts. In his chapter on voice and style, he begins with a reflection on what it’s like to grade law-school examinations:

As I grade these examinations, as best I can articulate it, the singular difference between the mediocre examination answers (C and below) and the middling to good examination answers (B-range grade) is primarily in the “substance”—whether students can identify the relevant issues and accurately articulate the relevant legal rules necessary to analyze the problem.

The distinction between the B exams and the A exams is, however, primarily in the “voice” and “style” of presentation. Voice and style, however, mean something much different in the context of law school examination taking than in the artful trial and appellate narratives that litigation attorneys construct in a factually far more complex and indeterminate world. (This, I think, speaks to why excellent litigation attorneys were often poor law school test takers.)

Meyer goes on to explain that the voice and style of top law school examinations “clamp[] down” on the facts, use clean organization, and employ the King’s English.  The student’s voice must be neutral and must not call attention to itself. “A” exams certainly don’t use colloquialism or humor. And they don’t explore the story embedded within the exam hypothetical in any depth. Meyer quotes a former student describing the events in an exam as “floating factoids.”

This is just one professor’s reflection on his experience grading exams, and he prefaces all of this by saying he grades holistically rather than with a detailed objective checklist. Still, it’s refreshingly transparent and I think every law student should read this—especially those just receiving their first round of law-school grades.

Law students who want to get into the courtroom and try cases may be disappointed that the skills distinguishing great trial lawyers maybe aren’t really tested in this (very popular and prevalent) type of law-school exam. That disconnect is the subject of discussion, critique, and reform, and more discussion, critique, and reform. The positive side here is that Meyer’s reflection invites law students to understand their grades as only loosely related (if there is much of any relationship) to how they might expect to perform in court.

Meyer’s reflection on the emasculated role of facts in many law school exams reminded me of an attorney’s recent #PracticeTuesday tweet. Bryan Gividen was responding to a call to bust law students’ myths of what it means to be a lawyer:

 

Working with the facts, crafting the story, developing a voice, testing whether the voice and the story resonate with an audience, all of these tasks are deeply connected with what it means to be a trial lawyer. The best appellate lawyers experiment with all of these things as well, but there are limits: the idea of “clamping down on the facts” by rigorously adhering to the record, and controlling one’s voice for the genre of the appellate brief and the audience of the appellate panel. Gividen draws this line when he identifies competitive appellate work as an exception to “practicing the facts.”

Any law student or lawyer who wants to develop their skills practicing the facts should benefit from studying Storytelling for Lawyers. Meyers concludes the book with a reflection on why law stories are different from stories told by journalists, filmmakers, and artists:

A final characteristic of law stories, especially the stories told in litigation practice, is that these stories are typically open or unfinished stories—their endings are strongly implied but not ordered or prescribed. It is up to a decision maker to write the ending, provide the closure and the coda that gives the story its meaning, and determine the outcome.

Legal storytelling has a rich literature, and anyone intrigued by this brief exploration of Meyer’s book would enjoy delving into the legal storytelling/applied legal storytelling scholarship. One gem is  Ruth Anne Robbins’ Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle L. Rev. 767 (2006). She argues that the client should not look to the judge as the hero and savior; the client should show how they are traversing a series of challenges and need the judge’s help in a mentoring role. The client is the real hero, a flawed hero but a hero nonetheless, seeking to carry on with their larger, bigger, more meaningful challenge. So the judge is not supposed to save the client; the client can save themself if they can just get through this lawsuit and carry on with their larger quest. Thus the opposing party is not the true antagonist but merely a “threshold guardian” impeding the client’s real quest.

Law students can take heart in this advice as well, in understanding their own personal story and quest. Law-school exams are basically a “threshold guardian.” They are a gatekeeping challenge the law student must face in the larger quest for something more meaningful.

 

 

 

Silence and group work in legal education

Jennifer Romig1 Comment

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

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

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

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

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

Scenario 1: 

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

Scenario 2:

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

Scenario 3:

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

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

Scenario 3

Scenario 2

Scenario 1

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

Scenario 1 or 2

Scenario 2 or 1

Scenario 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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