Category: Legal skills

AdvocacyFact investigationLegal communicationLegal skillsLitigation

Yes, I’m listening to Serial. Aren’t you?

The podcast Serial has, in the past few months, become the most popular podcast ever. As a dedicated bibliophile and not much of an audiobook fan, I’ve been surprised to become so engrossed. Serial reinvestigates the murder of Hae Min Lee, a high-school student from Baltimore who was killed in 1999. Her ex-boyfriend, Adnan Syed, was convicted and remains in prison. Serial raises a lot of questions about criminal justice, the legal system, and lawyering—and it manages to raise them in an interesting, suspenseful way. Listening is intertwined with these issues in a variety of ways, from our own experience as listeners to the vexed role of listening in the investigation and beyond.

Lawyer as listener

Lawyers are used to be the “tellers” in storytellers. As we listen to Serial, we experience a story as the audience. Producer Sarah Koenig controls the pace of the narrative both “week by week” and moment by moment. What immediately struck me—in a good way—was her use of pauses. She speaks quickly but in comprehensible segments, leaving space for understanding. She also uses the voices of others so well. Of course, one would expect nothing less from any affiliate of This American Life. Yet Serial brings a fresh appreciation for the interplay of voices and pauses delivered up for the listener’s ear. Just as one concrete benefit to spending your time with Serial: if you have a CLE presentation to prepare, it might inspire you to use a short video segment, or to experiment a little more with pauses and conversational suspense the way Koenig does.

It’s also interesting that each episode of Serial differs in length. Koenig doesn’t try to space out the narrative to fill a set length of time; she breaks off one coherent piece of the story, fleshes it out, and stops. An episode may be 28 minutes long, or it may be 53. The flexibility of the podcast format is extra courteous to the listeners: we can listen whenever and wherever we want, and we know that an episode is just exactly as long as the producer thinks it should be, no more. The fact it’s free doesn’t hurt either. (In episode 9 she asks for listener contributions, and to date enough has been gathered to support a second season.)

One more note on the listening experience, and this is a little more critical: Serial is in part a work of entertainment, and as such, it has own music. At first, the signature jaunty opening piano left me confused. The music also includes some looming, menacing moments, as well as plaintive notes associates with Hae, the victim. But when we later think of Serial and its phenomenal podcast success, I think we’re going to think of the jaunty piano. As Slate asked, “What the heck is Serial: A mystery? A comedy? A touching memorial?” I can understand why her family may be in pain to have her murder brought back into the public’s view—and the public’s ear—in this way.

Listening in the criminal-justice system

Then there is Serial‘s substantive coverage of how listening happens in the legal system. The listening comes in the form of information gathering, but also information-confirming, and the line between them is not always clear.

We hear several segments of taped interviews with a key witness—indeed, the state’s star witness—talking to Detectives Ritz and MacGillivary. One detective would ask a question that leads the witness to answer and perhaps ramble, at which point the other would follow up with pointed clarification, as Koenig points out. Perhaps it’s surprising that we hear any tactics at all in these interviews. Before taping, the witness and detectives spent three hours “ironing out” this witness’s statement, which was the standard practice back in 1999 and has since been discredited. As producer Sarah Koenig points out this untaped “pre-interview” is “where the mischief can happen, the contamination.” She’s quoting Jim Trainum, a former homicide detective and now consultant to police forces, innocence projects, and others (such as famous podcasts) on issues of interrogation techniques and false confessions. Serial hired Trainum as a consultant for the series.

In prosecution of Syed, the star witness had the virtue of providing valuable information the detectives hadn’t been able to get anywhere else. That witness also provided closure, “a satisfying investigative circle, a murder case on a silver platter,” Koenig points out. When detectives hear possibly conflicting details, they don’t push. The reason they don’t push are both explicit and much more subtle. In terms of obvious strategy, as Trainum states, “You don’t want to do something if it’s going to go against your theory of the case.” No confession is perfect; there will always be some inconsistencies. Those inconsistencies are handled very, very carefully because police don’t want to create “bad evidence.” Producer Koenig literally sputters when Trainum tells her the purpose of the interrogation is not so much to get to the truth as it is to make the case.

Compounding the conscious intent to make the case is the subconscious effect of verification bias. (Listen Like a Lawyer has previously posted on various cognitive biases including confirmation/verification bias.)

To illustrate verification bias, Trainum recreates the mental dialogue of a detective taking a statement, when that detective hears something that doesn’t quite fit: ”I want to believe you because you’re my witness and I think this is what happened and all that, so the fact that you’re giving me something that’s inconsistent and doesn’t fit my theory of the case, what does verification bias cause you [sic] to do? Ignore it and push it aside.”

By the time the detectives interview defendant Syed, as chronicled in episode 9, they have moved from information-gathering to what looks like information-confirming: they open his interview with a “theme.” One of the detectives introduced himself to Syed by suggesting that the detective himself had an ex-wife and could understand how “this” could happen. Serial doesn’t suggest that listening must always be open-ended and can never arrive at a central narrative. That would be naive. But Koenig is certainly suggesting the narrative that convicted Syed is problematic. In essence, Serial is listening to Syed’s story as of today, as it has developed post-conviction, in a way that the court system may or may not do. His petition for post-conviction relief is pending.

Serial has finished its ninth episode and has a handful more to go. For lawyers who have not yet picked up on it, I do recommend it. For those who are already listening to Serial, please share your thoughts. How has the listening experience affected you? What do you think it shows about listening within the legal system?

AdvocacyLaw practiceLegal skillsLitigation

Listening at Trial

United States District Judge Mark Bennett (N.D. Iowa) has published a great article on the “Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker ‘I Am a Litigator.'”

Studying the entire article would be an excellent use of time for any litigator trial lawyer. Judge Bennett’s coverage of being a great listener — Roman numeral VII in the article — is centered around a pretty strong criticism: “In my view, listening skills are incredibly underdeveloped in most lawyers I have observed in the courtroom.”

Judge Bennett outlines how listening is essential to core competencies of a trial lawyer such as understanding the other side’s case, being responsive to the judge hearing the case, and effectively examining friendly and hostile witnesses. It’s particularly helpful that he gives a specific example — in transcript form — of how a good lawyer can listen effectively at trial. Judge Bennett further points out that listening is rather helpful to building trust with clients, an important skill for any type of lawyer.

Hat tip to the Legal Skills Prof Blog, which shared this article earlier in the week.

AdvocacyLaw practiceLegal communicationLegal skillsLitigation

Not thinking like a lawyer

I went to meet the listening professors (Debra Worthington and Margaret Fitch-Hauser) expecting deep theory. And they did give some, using words like “psychometric” and reflecting on the history of the listening field.

Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser

Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser

But their practical work in trial consulting was where our experiences and vocabularies overlapped a lot more, and where our most interesting conversations took place. Professor Worthington worked for 15 years in courtroom communications before she delved more deeply into listening theory and research. Professor Fitch-Hauser, now celebrating her retirement from Auburn, also works as a consultant and is the person who drew Worthington into the listening field. Their work together culminated in the listening textbook Listening: Processes, Functions and Competency.

The combination of their theoretical strength with their practical experience in the legal field made me doubly grateful for the opportunity to meet and talk with them over a long lunch in Auburn.

Worthington recounted her work with a difficult witness whose arrogance had damaged his case, both on the substance and his refusal to heed his lawyers’ guidance on demeanor. Worthington studied his testimony to understand his view of the case. She talked with him to find out what “really made him tick.” And then she used his underlying motivation to explain the case to him in a different way, and to motivate him to adopt good witness practices not because his lawyers told him too but for his own reasons as well.

As I thought about this anecdote, I became even more intrigued with the role trial consultants may play as listeners. For example, intuition may affect one’s listening. A lawyer’s intuition on dealing with a horrible witness may overlap — but not completely — with a trial consultant’s own intuition. And thus the lawyer and trial consultant would bring complementary methods to the table not just in generating themes and telling the story, but in listening to the people who in turn will be listened to by the jury.

Along these lines, Worthington shared that at an early juncture in her career, after she had already been working in legal communications, she considered whether to continue with graduate education or go to law school. Her mentor advised the former. “Debra,” he said, “your greatest strength is that you don’t think like a lawyer.”

Fitch-Hauser echoed the value of stepping outside the lawyer’s perspective: “It is crucial for attorneys not to expect the client to think as they think, and to make adjustments, and to not expect the jury to think as they think. They need to adjust their strategy and the way they tell their story to meet the jury’s needs.”

Both Worthington and Fitch-Hauser have been interested in questions about how listening intersects with personality, and how listening can be measured. One question I wanted to ask both of them relates to measurement and self-assessment: “How can an attorney know if he or she is a bad listener?”

Fitch-Hauser jumped to take this question:

There are some things anyone — attorney, or any other profession — can do, if they are willing to be objective. Ask yourself: When someone asks a question, do you always know the answer before the answer is given? If your own answer is yes, you may be listening to yourself rather than the other person. This is “selective listening,” which by one definition means “listening for the information that reinforces your own attitudes, ideas, and feelings.”

Worthington added the terms “assimiliation” and “constrasting” to the discussion at this point. Assimilation means taking in information that fits your pre-existing beliefs. Essentially, if you believe someone is similar to you, then you may perceive information from that person as closer to your existing beliefs than it really is. And the opposite is contrasting. If you go into a situation thinking someone has different beliefs, you may tend to perceive that person’s information as more different from your own beliefs than it really is. (Assimilation and contrasting seem generally related to the cognitive phenomenon of confirmation bias. Some general thoughts on listening and various cognitive biases including confirmation bias have been explored on Listen Like a Lawyer here and here and here.)

Fitch-Hauser embodies thoughtful listening in her own conversational style, and reinforced that with some advice: “Don’t be afraid to use silence.” Sometimes clients come to lawyers with a “story” that may or may not match the facts. By talking with them and learning how they feel about the case, and at times remaining silent, an attorney can find out more about the real story behind what the client presents as the “official story.”

Worthington and Fitch-Hauser also touched on the power of nonverbal communication as an aspect of listening. “Look at the client as the client is talking,” Fitch-Hauser advised. “You can hear the pause and see them glance away. And then you can say, ‘It seems like there’s something else you want to add.'”

Ultimately, being a bad listener is somewhat part of the human condition, Worthington said. We all have moments of effective and ineffective listening. Lawyers, and anyone else who cares about communication, can seek an honest self-assessment of when they listen well and not so well. By keeping a communications journal, lawyers can start to recognize the situations when their listening is strong and weak. Reinforcing a theme from their textbook, Worthington noted that the answer to good listening versus bad often lies in the motivation to listen. “Motivation is finding some reason inside ourselves to expend the energy and get in there and listen.”

Fitch-Hauser sharpened the edge a bit: “Pretending to listen isn’t listening. Many people go through the motions. They put on the face, they lean forward, they nod, and they turn on a light. But they truly need to be home.”

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Listening, legal writing, and legal reading: there’s an app for that

One theme of this blog tilts toward the Luddite: let’s put down our phones, look into one another’s eyes, and really listen, and listen some more. But another theme is to stop worrying and learn to love the technology/internet/digital life etc. Want to be a great listener and a great lawyer? There’s an app for that.

Along those lines, there really is an app that can help listening play a valuable role in the writing and revision process (legal writing or any other kind of writing). Voice Dream Reader is an iPhone/iPad text-to-speech app ($9.99).

IMG_0202Voice Dream Reader can read word-processing documents, PDFs, webpages, certain kinds of digital books, and other types of documents. It integrates seamlessly with many other apps (I used it with Dropbox). Here’s a simple screen shot of some clipped text; visit the App Store to see more examples of what it can do: The default voice that comes with Voice Dream Reader is a little bit computer-ish. Buying a premium voice for $5 or $10 may make this work better for you. I tested out some voices and found that “Salli” was the most listenable for me personally.

Interacting with the app suggested several possibilities for using text-to-speech in legal writing, mainly engaging with your own written work for revising, editing, and proofreading. Text-to-speech could also be valuable for listening to particularly important texts (such as critical research sources). I used Voice Dream Reader to listen to various passages of legal writing and an article about listening and reading. Here are some thoughts on how this app (or other text-to-speech apps) could help with editing and with reading.

Listen to your own writing for flow and proofreading

Most obviously, you could use something like Voice Dream Reader to listen to your own writing. Open a document in Voice Dream Reader and listen to it. They say (and by “they say,” I mean everybody says) editing is about “getting distance from your work.” Listening to your own writing as read by a robot voice is one way to get some distance.

One feature of Voice Dream Reader that fascinated me was its ability to highlight each line and each word as it reads. Speech is slower than thought, and that’s one reason listening is such a challenge. By highlighting the line in yellow and the word inside a red box as it reads, Voice Dream Reader’s multiple inputs help to close that “thought-speech differential” and focus attention on the text. If the sentences are hard to listen to because they are convoluted, too long, or constructed in a confusing way, they probably aren’t readable either. Readability and listenability are closely related, although formulas that quantify readability and listenability may not be identical.* Whether listenability is precisely the same thing as readability need not be resolved by a writer with a pragmatic interest in editing.

To focus on the flow of ideas and connections of sentences, you could turn off the highlighting feature so you don’t see each word highlighted. Listen to the draft in a sort of auditory, storytelling mode. Stop the process when you feel a gap in the story; work on the problem, re-load the new text into Voice Dream (which doesn’t take long) and then resume the listening.

For proofreading, it might be desirable to use the app’s most robotic, computer-sounding voice. The goal is to use technology to get that distance from the draft; a robotic voice can help override the brilliant, friendly internal voice you may hear when editing your own work. (This is the voice that conveniently “fixes” errors as you go, thus compromising the editing process.) Reduce the rate of speech so . . . that . . . the . . . words . . . unroll . . . slowly. Turn on the line and word highlighting so that each word gets its own spotlight as you go.

Listening to a draft probably isn’t great for very large-scale revision questions. And it seems stronger for editing what is on the page rather than what isn’t. Still, it could have collateral benefits in these areas as well, prompting questions about organization and missing content. Listening to a draft is an investment of time (22:07 for a six-page double-spaced memo), but one that could be both interesting and beneficial.

Listen to the important legal authorities

Listening to a legal authority is another investment of time: 7:03 for the text of Fed. R. Civ. P. 56; 36:14 just for the majority opinion in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). But if a legal source is very, very important, it could be well worth the time to listen to the entire thing. You would know the document more thoroughly than if you simply read it silently and highlighted it. You could stop the reading and take notes. You could really hear language that was important or vivid and would therefore make a great quote in a piece of writing about that source.

This may be wishful thinking, but perhaps listening to a legal source could help with that elusive goal of “hearing what they’re not saying.” Expert legal readers can do this; law students learning to read cases are advised to notice what the court did not say or hold. (Linda Edwards’ Legal Writing: Process, Analysis, and Organization is one such text with this advice.)

By listening to a text, which is slower than reading, you have more time to run alternate scenarios of how the text might have been worded. Apart from using any app, reading the authority out loud in your own voice could be beneficial in related ways (maybe even more beneficial). Yet it also might be difficult to persevere through an entire legal document.

Voice Dream Reader could help with the necessary perseverance. It shows you the total reading time and you can see a circle progress through a timeline, orienting you to how much longer there is to go. This timeline could be another useful piece of information for revision purposes as well: if the text seems to drag and make unnecessary points, perhaps it could and should be shortened.

Caveats and conclusion

As mentioned above, here are the features I found most useful in Voice Dream Reader:

  •  the ability to highlight text, or turn off highlighting
  • control over the rate of speech
  • premium voices
  • integration with Dropbox

A few critiques and caveats: Trying to move back and forth in a document was awkward and difficult for me. I did figure out how to bookmark certain moments and navigate among them, which was helpful. One of the sources I read was a PDF with footnotes. Voice Dream Reader did not know how to handle footnotes other than to plow through them in linear fashion. When it came to the bottom of the main text on a page, it then went immediately into the footnotes below.

This linear reading of text and footnotes was both awkward and helpful in a strange way. It was awkward because citations aren’t sentences and they sound just plain ugly. But listening to the footnotes was actually kind of helpful as well because it gave me a moment to listen less attentively and jot some notes about the main text. I didn’t totally tune out from the footnotes; the reading was slow enough that I could make notes on interesting sources to investigate later.

Another caveat: I am positive there are many other apps and web apps and software programs with similar functionality. I did not do a comprehensive search into alternative text-to-speech platforms. (There is a free version of Voice Dream Reader called Voice Dream Reader Lite. Apparently it reads in 300-word segments, after which you have to press “play” again to continue. I did not try out the lite version.) I did find this helpful in-depth review of Voice Dream Reader.

Using Voice Dream Reader revealed some interesting possibilities for bringing speech and listening into the analysis and writing process. If you have used a text-to-speech app such as Voice Dream Reader for your own listening, reading, and writing — especially in a law-related context — please share thoughts in the comments.

*Sidebar if you’re interested: Patrick Ellis — a lawyer and scholar with some serious coding skills — measured the “simplicity” of an oral argument by Supreme Court advocate and former Solicitor General Paul Clement by converting the recording to text and quantifying its readability. But some listening scholarship suggests that listenability and readability are not as closely related as one might think because nonverbal cues, attitudes, and presentation issues affect listenability in a way that readability formulas don’t take into account. See Glenn, Emmert, and Emmert, A Scale for Measuring Listenability: The Factors that Determine Listening Ease and Difficulty, 9 Int’l J. Listening 44 (1995) (“too many variables intervene that prevent unqualified use of reading measurements to test and evaluate the listenability of oral texts”).

Legal skillsLegal writingWriting

Listening’s influence on writing

When we talk about communication, we are talking about four basic channels:

  • Listening
  • Speaking
  • Reading
  • Writing

Did you see a pattern in the color scheme here? The blue channels are receptive, and the red channels are productive. Listening and writing share the least in common, since listening is receptive and does not require literacy. Listening occurs in context with many additional cues, whereas writing must supply its own context.*

Yet my message here — for any lawyer or law student who wants to be a better legal writer, as well as legal writing professors — is that working on listening can contribute to stronger writing.

Listening at the outset

The social aspect of legal writing means listening is crucial. Whenever an writing assignment or project is delegated through spoken words, listening sets the stage for successful writing. In professional contexts such as law practice, “successful writing” may be defined in large part as whether the writing satisfies the expectations of the person giving the assignment. Effectively listening to that person as he or she gives the assignment is therefore an important aspect of effectively writing it.

Listen Like a Lawyer previously suggested a checklist for taking an assignment, itemizing the obvious points one needs to get out of such conversations as well as some of the more intuitive information to listen for. While listening at this stage doesn’t guarantee success, it’s hard to imagine how one could successfully complete the project without effectively listening first.

Listening to feedback

On the other end of the process — but still fundamentally social — another link between good listening and good writing is handling feedback. Effectively listening to feedback and incorporating it into future work is crucial for a writer’s growth and development. The legal writing scholarship offers a number of insights into how professors should give feedback to 1Ls and what challenges they are likely to face. These recommendations help students listen to what their professors/writing mentors have to say.

In law practice, however, attorneys most likely *are not* well trained to give writing feedback, either in writing or in person. Anyone ever receive back an entire page x-ed out and annotated with the lone word “awkward” or — my personal favorite — “revise”?

But maybe unskilled feedback is actually not the problem. The real key to feedback lies in the person receiving it, according to Douglas Stone and Sheila Heen in Thanks for the Feedback: The Science and Art of Receiving Feedback Well. These are the same folks who wrote Difficult Conversations, so you know they are onto something. Their book outlines the importance of feedback in every aspect of life and the most important reactive barriers to learning from feedback — namely reactions to the perceived truth of the feedback; reactions based on the relationship with the person giving the feedback, and reactions due to a threatened personal identity. (I am halfway through this book and have concluded EVERYONE SHOULD READ IT. Expect a longer blog post to follow about listening to feedback.)

“Listening” while writing?

While it’s pretty easy to see how listening contributes to the assignment and the feedback, what about the middle — the actual writing itself?  This part of writing isn’t so social. There’s no one to listen to.

Or maybe there is. Communications scholar Sara Lundsteen and others have suggested that part of good writing means having a good dialogue with oneself while creating. Being able to articulate what you’re writing about and why is part of a healthy writing process, writes Lundsteen in Listening: Its Impact at all Levels on Reading and Other Language Arts (1979). And being able to “hear” your own writing and revise it as needed are aspects of a healthy writing process as well. Here’s one amazing writer, Verlyn Klinkenborg, recommending that writers just listen to their own writing and notice how it sounds.

In contrast, stressing out about how much the professor or supervising lawyer is going to hate this piece of writing is not an effective “voice” to listen to when trying to write. Models of writing such as Betty Flowers’ “madman-architect-carpenter-judge” (widely promoted among lawyers by Bryan Garner) help writers hold the critical voice at bay, opening their thoughts to more constructive internal dialogue. Methods such as Professor Mary Beth Beazley’s concept of “private memos” (footnotes with the writer’s questions and notes) help manage a writer’s internal dialogue as well. Preserving one’s personal voice while learning the conventions of legal writing is the concern of scholars such as Andrea McCardle.

As the idea of internal dialogue demonstrates, “listening” is surprisingly difficult to define and inextricably intertwined with thinking. Here in the middle of the writing process, thinking as embodied and expressed in various ways — listening to your own internal voice, hearing the sound of your writing, reading your draft, speaking the words out loud, and writing some more — is what will make better writers and better writing.

***

*For support and a more in-depth discussion, writing professors should check out Irene Lurkis Clark’s article on LIstening and Writing.

I look forward to presenting about listening and writing at the upcoming 16th Biennial Conference of the Legal Writing Institute. Co-presenter Professor Tami Lefko will discuss listening, professionalism, and law school pedagogy.

Law schoolLegal communicationLegal skillsLegal writingWriting

Listenability and readability

The essential difficulty with writing is “the curse of knowledge,” as Lisa Cron describes in her excellent book Wired for Story: The Writer’s Guide to Using Brain Science to Hook Readers from the Very First Sentence. The writer is cursed with the knowledge of what he or she is trying to say — knowledge that the reader by definition does not share. This curse manifests in at least two ways:

On the one hand, the writer is so familiar with his subject that he glosses over things the reader is utterly clueless about. On the other, it’s way too easy for the writer to get caught up in the minutiae of how things “really work” and lose sight of the story itself.

Cron then takes a bit of a cheap shot, although maybe it’s deserved:

This is something that, for some reason, lawyers seem particularly prone to.

(Digression: Forgive this one moment. Cron’s book is great, and particularly great for any law student or lawyer interested in storytelling.)

Composition scholars and legal writing scholars have been talking about this “curse of knowledge” in different words for a long time. In this post I’m drawing in particular on an article by Irene Lurkis Clark, Listening and Writing, 3 J. Basic Writing 81 (1981), available at http://wac.colostate.edu/jbw/v3n3/clark.pdf. Professor Lurkis Clark did some interesting work with listening and writing that helps explain why and how listening can help build better writing.

A different way to describe the writer’s curse of knowledge is the problem of “writer-based prose,” a term coined by famous communications scholar Linda Flowers. Writer-based prose is bad because it assumes the reader already knows what the writer is trying to say. This kind of prose is an “‘unretouched and under processed version’ of the writer’s own thought.” Students must learn to produce “reader-based prose,” which entails a “deliberate attempt” to reach the reader using “shared language and context.”

Beginning legal writers face the double challenge of learning to use legal concepts and language with precision *and* writing about those concepts for a reader. The reader for our purposes is not just any reader, but a legal reader. Extensive legal writing scholarship explores these challenges and how to address them. A few key methods include reading excellent writingfollowing structured self-editing processes, reflecting on the writing process and written product, and  obtaining/implementing meaningful feedback from peers, professors, supervising lawyers, and others.

Effective listening can help with effective writing too.

This is in part because language skills are integrated. Some scholars claim they are completely integrated (good reader = good writer = good listener = good speaker). Others take a more nuanced position, seeking to explore and define the boundaries between listening, reading, speaking, and writing. The extent of integration need not be resolved for listening to help a lawyer or law student wanting to write more effectively.

For example, reading your work out loud is something we are all told to do. Professor Lurkis Clark explored the composition theory behind this recommendation — namely that “listenability” and “readability” are closely related. Early work in listenability actually used readability scores to measure listenability, a method that has been questioned and refined since then.

Based on the connections between listenability and readability, Professor Lurkis Clark proposed that students listen to each other’s writing and share structured feedback. The idea is that beginning (non-legal) writers can build their reading comprehension skills and gain a stronger sense of audience. If students’ listening is stronger than their reading (which can be the case with unskilled writers), then critiques based on listening may be more advanced than those based on reading.

Lurkis Clark didn’t claim peer review by listening was a novel idea, but she sought to explore why it works and what it’s best suited to do. In this work and a subsequent experimental study of how evaluators scored text depending on whether they listened to it or read it, Professor Lurkis Clark concluded — not surprisingly — that listening is best for critiquing structure, content and audience appropriateness. She found a high correlation between scores assigned to a text by listeners and those assigned by readers of that same text. Taken in sum, her work validates the role of listening in what is, ideally, a virtuous spiral of developing communication skills:

One’s ability to listen . . . can enhance one’s ability to read, which, in turn, can enhance one’s ability to revise, which, finally, has significant implications for the production of coherent discourse.

 

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Checklists for listening

The checklist is a surprisingly simple yet effective tool for improving performance in fields from aviation to construction to medicine to law. Checklists help professionals catch what Dr. Atul Gawande, the chief evangelist of checklists in the workplace, calls “the stupid stuff.”

Flickr/AJ Cann

Flickr/AJ Cann

Checklists also assist with collaborative work on large, complex projects. Complex challenges may not have a right answer, but project-management-style checklists help teams communicate and collaborate efficiently to handle uncertainty and forge a path forward.

I’ve written about how checklists help legal writers (here and here and here). Professor Kathleen Elliot Vinson of Suffolk Law developed an iPhone app with legal writing checklists (reviewed by Bob Ambrogi here). Checklists can help lawyers and law students listen more effectively as well.

For example, a listening checklist should be very useful for face-to-face meetings to discuss a new assignment. During a face-to-face meeting, forgetting to talk about a key topic would fall under Gawande’s definition of “stupid stuff.” Running down the checklist at the end of a meeting can help ensure key topics are covered. This process minimizes inefficient interruptions and follow-ups later. It also maximizes the value of the initial face-to-face time. Click here for a sample checklist for summer associates and legal interns.

Listening checklists could also be useful for client intake meetings, prep sessions such as deposition or mediation prep, feedback on assignments, and so on. Checklists for lawyering tasks are not a novel idea, which raises the question: is a “listening checklist” really that different from a regular checklist of relevant tasks?

Just as a pilot has numerous checklists in the flight manual for a variety of scenarios, a lawyer may have a listening checklist for handling meetings and a different kind of checklist for preparing an SEC filing, for example. The categorical name of the checklist doesn’t matter, buGawande’s great work on checklists, The Checklist Manifesto, teaches that a long, cumbersome, everything-but-the-kitchen-sink checklist is not a particularly good one. Any clear checklist that encourages efficient, effective communication is a valuable checklist for lawyers.

Thanks to Professor Tami Lefko for feedback on this post.

AdvocacyLaw practiceLegal communicationLegal skillsPeople skills

Listening and the art of the “callback”

What do oral argument, marketing pitches, and improvisational theater have in common? This blog previously reviewed Steve Yastrow’s informative and entertaining book, Ditch the Pitch: The Art of Improvised Persuasion, and addressed how some of Yastrow’s recommended approaches could apply in the oral-argument setting.

444166694_bd13e2fa7f_b

Philip Larson/Flickr

Some of these applications may be unexpected — but one particular tactic is something skilled oral advocates have been doing from time immemorial: the “callback,” or referring to something someone said earlier.

“Calling back,” or referring to a judge’s earlier question or comment is a classic tactic for oral argument, although lawyers don’t tend to use the term“callback” in this context. Whatever you call it, Yastrow’s explanations for why it works so well in business translate fairly well to the oral-argument context as well. (And apart from oral argument, the approaches in Ditch the Pitch certainly deserve consideration by lawyers developing their marketing pitches conversations.)

Callbacks demonstrate listening. And listening generates rewards, Yastrow writes, namely the rewards of your audience’s attention and interest.

Callbacks also help the audience understand the conversation. They make it more coherent: “[A] callback ties material together, making it easier to understand and engage with that material,” Yastrow writes. When the information is easier to understand, it feels more cohesive and resonant. It’s more believable.

Most subtly, callbacks involve the audience. In improvisational theater, callbacks help make the audience feel that they are “in on the joke.” They are “with” the cast and not part of the audience. Similarly, using a callback in oral argument involves the judge in the argument as more than a passive listener. When done right, mentioning a judge’s earlier comment or question can subtly suggest that the judge has already begin to take a few steps down the road toward accepting a certain position.

Yastrow’s advice for executing a callback strategy is helpful for oral advocates (and legal marketers) as well. The three basic steps, he writes, are discovering the opportunity for a callback, remembering it, and integrating it into the conversation.

Discovering the opportunity for a callback means being alert. Notice things that are important to the audience. Try to make a mental (or actual) list of “Things That Matter” to the audience. Advocates can prime themselves to be alert by their usual preparation steps such as studying precedent and the particular judges’ prior rulings. During the argument, advocates would certainly want to make a note of the dominant topics, i.e. Things That Matter to the judges.

Remembering the opportunity can be difficult because of the need to be engaged in the conversation itself. This is exceptionally true in oral argument, where time seems to distort itself and nerves interfere with simple tasks like taking a drink of water. (Anyone remember Tom Cruise struggling to take a sip in A Few Good Men?)

Yastrow recommends attaching visual images to the comments to help with recall. For example in a trade secrets case, if the judge asks whether other employees had access to the alleged trade secret, an advocate might visualize a large company meeting with all employees sitting in an auditorium, and the trade secret sitting on a platform on stage. This visual technique may sound a bit kooky, and it is explained fully in a very kooky and wonderful book, Moonwalking with Einstein by Joshua Foer. As Yastrow shows, it works in serious business situations. And it will work in oral argument as well. (Lawyers and law students, have you tried this?)

Lastly, the callback must be integrated into the conversation. There’s a ham-handed way to do this and an effective way. “Play it cool,” Yastrow advises; don’t say, “Hey, look at me, aren’t I clever, I just came up with a callback!” For advocates, one risk is over-playing their hand. Presenting the callback as a “gotcha” to the judge is probably worse than doing no callback at all.

To be effective, the callback must naturally fit in with the conversation itself. And that requires an overall mindset of alertness to the audience’s interests and needs, as well as a willingness to take the risk of improvising.

Legal communicationLegal skillsPeople skills

Bad listening is stronger than good

What’s more productive: targeting problems or building on strengths? Robert Sutton wrote in the Harvard Business Review Blog that “Bad Is Stronger Than Good.” This essentially means that eliminating the bad in the workplace – performance obstacles, bullying behavior, and even toxic people – is more effective than recognizing positive accomplishments and helping employees build on their strengths. Sutton’s post recounts the work of psychologists such as Roy Baumeister: “a huge pile of peer-reviewed studies” show that “negative information, experiences, and people have far deeper impact than positive ones.”

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Courtesy Jes/Flickr

Under this reasoning, eliminating bad listening habits should be more of a priority than celebrating the most enlightened listening practices. Damage done to team and client relations by bad listening is more significant than the benefits of recognizing and promoting listening excellence.

Thus perhaps this blog should use more scare tactics: 10 Ways to Fail as a Listener, and Therefore as a Lawyer?  5 Listening Mistakes No Decent Lawyer Should Make?

Although these titles are a bit dramatic, they do lead to an important and somewhat fun question: What actually *are* the worst listening practices?

Here are my opening nominations for the three worst. Please feel free to use the comments for sharing your own thoughts on lawyers’ worst listening practices.

1. Looking at one’s smartphone while supposedly listening.

I recently heard two complementary stories about how smartphones affect listening. In the first story, an interviewee checked his phone during the interview. The interviewer couldn’t help but wonder: “What’s so important that you need to look at your phone during my interview with you?”

In the second story, a law firm won a client’s business partly because none of the 20 firm lawyers in the room looked at a smartphone during their lengthy presentation to the client. The client expressed astonishment at the focused attention and lack of distraction in the room during that presentation.

2. Appearing to listen, then sending a confirmatory e-mail that is misleadingly incomplete or biased

Effective listening is a great way of building trust. That trust is broken when an ostensibly good listener follows up with a disappointingly incomplete recounting of the conversation. Or worse, a biased and self-serving recounting.

3. Listening with intent to start speaking at the first opportunity

In a scene from Pulp Fiction, Uma Thurman’s character asks John Travolta: “Do you listen or just wait to talk?” He says, “I wait to talk, but I’m trying to listen.” Several people have brought this scene to my attention since I started Listen Like a Lawyer. It is so memorable because it rings so true with people’s experience of frustrating conversations.

Negativity can be so . . . well, negative. Yet the idea that “bad is stronger than good” suggests that the most productive way for people and organizations to be better at listening is to stop being so bad at listening. 

Listen Like a Lawyer is grateful to Matt Homann for tweeting a link to Sutton’s post. Thanks to Matt for passing along another thought-provoking article with implications for listening.

 

 

Law practiceLegal skillsLitigationPeople skills

Therapeutic jurisprudence and listening

Suffolk Law School hosted a workshop Friday, April 11, on “The Study and Practice of Law in a Therapeutic Key: An Introduction to Therapeutic Jurisprudence.”  Therapeutic jurisprudence has been discussed and debated since the 1980s, and a working formal definition has emerged, quoted here from Professor David Yamada’s blog post about the workshop at Suffolk:

Therapeutic Jurisprudence (TJ) concentrates on the law’s impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law’s role as a potential therapeutic agent should be recognized and systematically studied.

TJ has been applied in specific contexts such as mental-health diversion programs, juvenile-offender programs, workers’ compensation, medical malpractice, and other areas. Apart from specific areas of law and problems, therapeutic jurisprudence has been explored as an overall mindset for the practice of law. TJ founders professors David Wexler and Bruce Winnick have written (Hein sub. req’d) that TJ asks “whether the law’s anti-therapeutic consequences can be reduced, and its therapeutic consequences enhanced, without subordinating due process and other justice values.”

Listening seems inextricably linked with a therapeutic approach to anything involving other people. Here are some preliminary thoughts on therapeutic and anti-therapeutic approaches related to listening skills that one might see in law practice and legal proceedings:

Therapeutic Anti-therapeutic
Comfortable environment Threatening, high-stakes environment
Listeners use receptive body language Closed body language
Sufficient time for sharing one’s story Time constraints cutting off story
Listener demonstrates understanding such as by paraphrasing key points Listener responds immediately with advice and instruction
Listener has expertise or experience in the situation Listener doesn’t “get it”
Responses help identify solutions Responses are “gotcha” moments
Door is open for sharing further information Pressure to remember and include all points in one sitting

I’d love to hear from law professors and lawyers who have studied and applied TJ concepts and methods in their areas of practice. A quick look at the literature suggests that TJ has had the biggest impact on specific court systems designed to address specific problems. Can and should TJ concepts filter into the general court system and general law practice? Perhaps it should be something that lawyers are familiar with and can draw upon when a situation needs more than just dispassionate analytical investigation and solutions. Mediators trained in TJ would seem particularly valuable in certain cases calling for a therapeutic approach.

And one does not need to have an advanced law degree in therapeutic jurisprudence to understand that giving someone your attention and listening to his or her story is one of the most therapeutic gifts anyone can share.