Category: Legal skills

AdvocacyLaw practiceLegal communicationLegal skillsLitigation

Oral argument as an improvised conversation

Oral argument — is it really a “conversation”? How can it be an authentic conversation when the power dynamics are so skewed toward the judges and when the attorney is ethically bound to advocate for the client? A recent incident with Judge Richard Posner is just one example of the inherent challenges of oral argument. Advocates may err on the side of scripted arguments and default answer structures as defense mechanisms to survive in this environment. Conversely, great advocates argue with flexibility, maintaining their basic persuasive agenda but effectively listening and responding to the judges’ questions.

I was thinking of the challenges of oral argument when I came across about a new book, Ditch the Pitch: The Art of Improvised Persuasion by Steve Yastrow (SelectBooks 2014).

ditch-the-pitch-cover-150

Yastrow seeks to replace the scripted, one-size-fits all business “pitch” with the art of “improvised persuasion.” This book is most directly relevant to lawyers interested in marketing, and I highly recommend it for that reason. But for this post, the focus is on making oral argument more responsive and conversational using Yastrow’s improvisational techniques. The rest of the post substitutes [advocates] for salespeople, and [judges] for customers.

The basic truth is harsh and hard to accept. Yastrow begins by attacking the belief that anyone — customer, judge, anyone at all — is actually interested in someone else’s scripted pitch/argument.

“[H]ere’s the unadorned truth: Your [judge] doesn’t really care what you have to say about yourself or what you are trying to [argue.] Your story is not all that interesting to him. He cares much more about his own story.” 

This underlying lack of interest (in what the advocate has to say) informs everything else Yastrow recommends:

“The first thing you have to do if you want [judges] to listen to you, is to earn the right to be heard. Contrary to the most fundamental beliefs about [advocacy], you do not earn the right to be heard just be delivering the right message to the right [judge] at the right time. You earn the right to be heard once you have engaged your [judge] in a dialogue that is meaningful to him.”

Conversations that are meaningful to the other person (the customer or judge) arise out of a “diagnostic” mindset. This means finding out what the other conversation partner wants, needs, and is concerned about. A diagnostic conversation stands in opposition to a prescriptive conversation where you just tell the other person what he or she needs. (This would be oral arguments consisting entirely of scripted arguments and scripted answers to questions.)

How does one create a diagnostic conversation? An advocate cannot turn the table on a panel of judges and say, “Your honors, I’d like to start by learning more about your needs in handling the challenges of deciding this case. What are your sticking points with my client’s position?” But advocates *can* use oral argument as the opportunity to learn how the judges are thinking about the case.

In this sense, many techniques from the book seem applicable:

  • “Think input before output.” Perceive and comprehend the input conveyed through the judges’ questions and even at times their facial expressions and body language.
  • “Say less to notice more.” Speak slowly enough that judges have a chance to think and ask questions as they arise. Make points thoroughly but concisely.
  • “Turn down your analytic brain.” This doesn’t mean abandoning legal analysis. It means trying to turn down the overly critical self-judging that comes from worrying about how things are going as they happen. If an advocate is berating him- or herself for bungling a question, the advocate is not open to the new cues being offered and how to keep the focus on the judges’ needs.
  • “Listen for the game.” Oral argument isn’t a game, but this language, drawn from theater improvisation, means finding the common ground of the improvised conversation: “What are we really doing? What are we really talking about? What’s going on here?” If an advocate is emphasizing the substantive legal question but the judges are asking technical questions about procedure or the effect on future cases, then there is no common ground — and no shared game to play.
  • “Ensure your [judge] keeps saying yes.” In Yastrow’s words, “If your [judge] says ‘no’ to something you say or disagrees with a statement you make, you will immediately feel the conversation stall.” Indeed. To try to minimize these stalled moments, focus on areas of “mutual affirmation and agreement.” It seems that mutual agreement may come many sources: taking reasonable positions that the court might actually adopt; using binding precedent in skillful way; invoking shared understandings such as canons of construction; and possibly invoking shared imagery that is meaningful to the court.

And one final interesting approach: “Keep 95 percent of the conversation about the [judge].” When selling, Yastrow continually monitors his own performance in the conversation and asks, “Are we still talking about them?” Phrased in terms of oral argument, “[the judge] wants to hear about himself. If you notice that the conversation is about you, change it! Focus the conversation on your [judge].

There are some other interesting points from the book to be explored in later posts, but let me end this post on the 95 percent point. How can advocates actually advocate for their clients while also keeping 95 percent of the focus on the judges? I have a few ideas, such as highlighting what the opinion will mean for the court as precedent going forward. What do you think? For oral advocates, have you explicitly tried to keep the focus on the court, and if so — how?

And more generally: does the analogy of a sales pitch correspond to oral argument? How can advocates listen and improvise more effectively at oral argument?

 

 

Law practiceLegal skillsLitigation

Is listening different for civil vs. criminal lawyers?

Do lawyers need different listening skills depending on their area of practice? I recently posed this question to an attorney with experience as a prosecutor and white-collar defense attorney, as well as civil practice in a highly regulated area.

This attorney described different listening challenges in civil versus criminal practice:

  • On the civil side, when talking to witnesses, this attorney looks for the witness who suddenly says too much: “When they start talking and talking — a lot — I know I’ve hit paydirt. When they’re blathering and not answering the question at all, especially when they had been answering directly and succinctly for the prior questions, that gives me a red flag that they are uncomfortable with the subject matter of that question. In turn, that leads me to pry deeper and not let them off the hook about that subject.”
  • In contrast on the criminal side, one challenge is to notice what is not said–particularly when the witness clams up about an important and difficult topic. “The witness will be in the middle of talking through a timeline and then, wait a minute–what happened in those two days you didn’t talk about?” Thus in interviewing witnesses on a criminal matter, the attorney focuses on “listening for the gaps.”

Civil and criminal lawyers have different cultures, different procedural rules and norms, and different consequences as a result of their work. Sometimes I wonder if they have much of anything in common, other than going to law school. What about listening? Do you think civil and criminal lawyers face different listening challenges? Or is effective listening fairly universal, regardless of the area of practice?

Law schoolLegal educationLegal skillsLitigation

Listening the first time

Do you remember the first oral argument you ever saw? The first real trial? First mediation? First negotiation? First plea deal? First closing?

These firsts are hard to forget. They can be pure sensory overloads: the defendant comes in wearing orange, the state puts on its case and the defense tries to poke holes and humanize the defendant, the jury decides, the judge speaks, and then the bailiffs take the defendant away, or not. That’s how I felt years ago as a young journalist on the courthouse beat, watching the power of the state.

Courtesy Flickr/Jeffrey Beale

Courtesy Flickr/Jeffrey Beale

But there is another approach–preparing to listen, to see, to notice. Building a tentative framework for comprehending the event. What should an observer expect to see? To hear? What does a mentor advise an observer to pay special attention to? If an observer has never seen a trial before, how should that observer filter and evaluate the first one?

Just as one example, here is a set of “listening guidelines” for observing one’s first oral argument. Where I teach legal writing, we share these guidelines with students before they watch an oral-argument demonstration. This is not a formal assessment rubric; it’s more an intuitive list of how and what to notice. And it’s not really just a “listening” framework; it’s a learning framework for an experience that demands and rewards effective listening.

  • How did counsel begin the argument?
  • Did counsel clearly state what they wanted the court to do?
  • Did counsel make the facts of the case clear?
  • Was counsel concise in describing the facts?
  • Did counsel set out a roadmap of the argument to follow?
  • What kinds of arguments did counsel focus on (legal, factual, policy, emotional, other)?
  • How did counsel use authority to support the argument?
  • Did the argument begin with strong, favorable points?
  • How did counsel handle counter-arguments?
  • What role did the record play in the argument?
  • What kind of questions did the court ask (e.g. clarifying, hostile, or friendly questions; questions about the record or about the legal support for the argument)?
  • How effectively did counsel answer those questions? What made the answers effective or ineffective?
  • How did counsel conclude the argument?
  • Did counsel do anything distracting to you?
  • What demeanor did counsel adopt (e.g. combative, conciliatory, matter-of-fact, impassioned, etc.)?

Feedback is welcome, both on the specific guidelines and the general concept. How have you prepared yourself, if at all, before seeing a type of lawyering event for the first time? How do you advise others to prepare themselves?

Legal communicationLegal skills

Listen Like a Lawyer’s Year-End Review

IMG_4525January 1, 2014 will begin the sixth month of Listen Like a Lawyer’s existence. In light of this benchmark as well as peer pressure from so many other blogs’ year-end reviews, this seems like a good moment to reflect on the blog’s brief past and to anticipate its future.

I am so grateful for the support received from many sources: colleagues at Emory Law School, where I teach legal writing, research, and advocacy; and many friends and acquaintances, both lawyers and non-lawyers, who have shared valuable contacts and relevant ideas about listening. Some lawyers have been particularly generous with their time, writing guest posts and giving interviews. Some of this content has already been published, and other content is yet to be published. For all who have allowed themselves to be associated with such a new endeavor, thank you!

For encouragement on the importance of listening skills for lawyers, I am especially grateful for the exchange of ideas with Professor Tami Lefko, Director of Legal Writing at Vanderbilt Law School. Professor Lefko and I look forward to our joint presentation on listening skills at the 2014 Legal Writing Institute Biennial Conference this summer.

The actual writing of the blog has involved elements of my experience as a lawyer, professor, and journalist. But blogging is a writing genre of its own. I am grateful to lawyer and blogger Dan Schwartz at the Connecticut Employment Law Blog, Professor Tim Terrell at Emory Law School, and lawyer Bard Brockman at Bryan Cave LLP for gently encouraging me to write shorter, more focused posts. I am working on it!

Just as there has been a learning curve for writing posts, there has also been a learning curve for sharing and distributing the blog. I am grateful to all who have retweeted, liked, and commented on Listen Like a Lawyer’s content. The blog has drawn interest from several communication experts, and I look forward to exploring and sharing their ideas on the blog in the year to come.

Looking to 2014, Listen Like a Lawyer will continue to offer weekly posts and curated tweets. The mix of content will continue to attempt to balance the interests of both law students and practicing lawyers. Of interest to both audiences, the blog will feature more interviews with experienced lawyers and legal professionals.

Please share your thoughts on what you’d like to see on Listen Like a Lawyer. Thank you! And Happy New Year to all. In the New Year, may we listen intently, compassionately, efficiently, strategically, and effectively. Please add your own adverbs in the comments below.

Clinical legal educationLaw practiceLegal skillsLitigation

Secrets in the courtroom

Courtesy of the J. Paul Getty Museum

Courtesy of the J. Paul Getty Museum

People over-value secret information, according to a series of studies reported in the New York Times reported earlier this year. Information designed as “classified” is treated as highly valuable precisely because it is secret.

When two groups in an experiment read the same government report—which was labeled “classified” for one group and “public” for the other—the results were stark: “people who thought the information was secret deemed it more useful, important and accurate than did those who thought it was public.” In other words, they applied a heuristic or psychological shortcut—in this case, the “secrecy heuristic.” Study participants were also more impressed by decisions based on secret information as opposed to freely available information.

Reports on these studies prompted some thoughts about listening, jurors, and the secrecy heuristic. Jurors are instructed to listen very carefully to what happens during trial. How, then, do jurors’ minds respond when attorneys object to evidence? The entire purpose of an objection is to prevent the jury from hearing something! (Or seeing it.) Within the flow of events in the courtroom, an objection stops everything.

At this point, the secrecy heuristic could come into play in several ways. If the objections are conducted in open court, the objection process emphatically flags for the jurors that there is something that one of the attorneys doesn’t want them to see or hear. They may be able to listen to the very evidence they will then be instructed to disregard, if it is ruled inadmissible.

If the objections are conducted in a bench conference, the same effect may apply. The theatrics of the courtroom could emphasize the secrecy if the attorneys approach the bench and speak in hushed voices about the “secret” evidence. A bench conference could trigger a double secrecy heuristic: the secrecy of the evidence itself, and the secrecy of the bench conference that they observe but cannot hear. (Or the  jurors may just tune out, regarding the conference as hyper-technical legal maneuverings.) 

Legal scholars such as Jeffrey Rachlinski of Cornell have written at length about heuristics within the legal context. For example, jurors do not appear to disregard information even if a judge asks them to disregard it. If one party asks for a certain amount in damages but the judge instructs the jury not to consider the amount, that amount still serves as an “anchor.” The anchor exerts influence regardless of the instruction to disregard it, pulling the award toward  the anchor for groups exposed to it. Groups with no anchor return very different damage awards. Professor Rachlinski has also written with Judge Andrew Wistrich and Chris Guthrie of Vanderbilt about whether judges can ignore inadmissible evidence that they hear; the answer appears to be “no.”

Under the concept of the secrecy heuristic, it seems possible that judges and jurors who hear inadmissible information and are instructed to disregard it may not only *not* disregard it but actually give it more weight. Jurors who know something is being kept from them may assign more weight to the gap in their knowledge. (If the word “insurance” arises at trial and then is hushed over by an objection, jurors might spend time in deliberations discussing whether to reduce a plaintiff’s award based on the likelihood of coverage. The role of insurance might seem even more important because they are not supposed to hear about it.)

The scholarship does not use the term “secrecy heuristic” in describing this effect but bears it out in different words: In the article on judges and limiting instructions, Wistrich, Guthrie, and Rachlinski cite practical advice from Keeton’s Trial Tactics and Methods: asking the judge to instruct the jury to disregard evidence “calls to the jury’s attention the relevance of the evidence to the very issue on which you are seeking to avoid their considering it.” They also cite a 2001 articleJury Decision Making: 45 Years of Empirical Research on Deliberating Groups, which found that limiting instructions are “associated with a paradoxical increase in the targeted behavior.”

The secrecy heuristic would help to explain the psychology of this paradox. When you instruct someone to listen carefully, but then to disregard certain information, the whole process is likely to reinforce their memory of that information and their assessment of just how important and valuable it really is.

Many thanks to Jeff Rachlinski of Cornell, and Julie Seaman and Paul Zwier of Emory for feedback on an earlier version of this post. For more background on cognitive heuristics and listening, here is an earlier series from Listen Like a Lawyer exploring cognitive biases and listening in the legal context.

Legal communicationLegal skills

Lawyers: listen to your writing

Little books about little writing are everywhere these days. The one that I can’t put down right now is Verlyn Klinkenborg’s Several short sentences about writing. This book takes on the dogmata of writing instruction in both its substance (outlining is overrated–gasp!) and its style (poetic prose or prose-like poetry; whatever it is, it’s more fun to read than a standard “how to write better” manual).

Although Several short sentences about writing is not tailored for lawyers, a high percentage of its criticisms and advice apply to legal writing:

  • Sentences that are trying too hard to sound like what an expert would write? Yes, we’ve definitely got those.
  • Sentences with unintentional repetition and other unpleasing rhythms? Yes, got those too.
  • Sentences that are overly long with no good reason to be that way? Check.

The book has a particularly interesting section on the role of listening in improving one’s writing. “Read your work out loud” is not revolutionary advice, but my sense is that few people actually do it. Maybe that’s because it takes time and needs to be done right. Klinkenborg digs into why it works and how to do it:

Try reading your work aloud.

The ear is much smarter than they eye,

If only because it’s also slower

And because the eye can’t see rhythm or hear unwanted repetition.

Klinkenborg raises and dismisses a couple of reasons writers may passively resist this practice. They may do it wrong, reading like a robot and therefore revealing very little about the prose. Or they may expect too much, thinking it will erase their own knowledge as writer so they can commune directly with the reader. That is just not possible, and Klinkenborg argues for more of a middle position:

But how should you read aloud?

There’s self-awareness even in this, 

A tendency to overdramatize or become self-conscious,

To read as though the words weren’t yours,

Mechanically, without listening,

As though you were somehow hiding from their sound

Or merely fulfilling a rote obligation.

Try reading the words on the page as though they were meant to be spoken plainly

To a listener who is both you and not you–

An imaginary listener seated not too far away.

That way your attention isn’t only on the words you’re reading.

it’s on the transmission of those words.

As you read aloud, catch the rhythm of the sentences without overemphasizing it.

Read so the listener can hear the shape of the syntax,

You be the listener, not another person.

You’ll be stopping often.

This idea of stopping is integral to his major theme about writing: notice things. You don’t need training in grammatical or rhetorical jargon just to notice something is or isn’t working in your sentences. Something “sounds funny.” You’ll feel a “subtle disturbance,” a “faint stirring[].” And when this happens, stop. And fix the problem.

There is a longer-term benefit to reading your work out loud as well, the book points out. Consistently reading your work out loud will “help you discern the underlying texture of your prose.” The act of reading out loud demonstrates the reader’s understanding, or lack thereof:  “[h]ow well you read aloud reveals how well you understand the syntax of a sentence.” And understanding the syntax of the sentence is a key toward being able to manage the shape of future sentences you will write and edit.

Klinkenborg’s prose/poetry will be uncomfortable, at least at first, for many lawyers used to our judicial opinions and IRACs, our demand letters and our contracts. But his overall approach to writing couldn’t be more on-point to what we do:

Know what each sentence says,

What it doesn’t say,

And what it implies.

To be able to do these three things, writers need to start by just noticing what the writing is doing. Listening to the sound of your own writing is one way to notice.

Lawyers, law students, and legal professionals: have you ever read your work out loud? Why did you get started and how do you do it? Some readers may have tried this practice but stopped. Does Klinkenborg’s approach persuade you to try again? Please share your comments, experiences, and advice on reading your work out loud as a writing and editing practice.


	
Legal communicationLegal skillsPeople skills

Mark my words: Listening to “discourse markers” to be a better listener

Spontaneous speech doesn’t fit together like Legos. Because speech reflects a sometimes messy thought process in real time, spoken transition words and phrases—what the linguists call “discourse markers”—serve a crucial purpose in conversation.

Jeneem/Flickr

Jeneem/Flickr

Discourse markers can be as empty as “I mean,” as overused as “clearly,” or as specific as “at the end of the day.” (I had thought “at the end of the day” was just a legal/business buzzword. Apparently it formally qualifies as a discourse marker as well.)

There are different kinds of discourse markers, including those the speaker provides to structure what he or she is saying, and those the listener provides in participating in the conversation. Saying “um-hmm” to keep the conversation going is one example. This post focuses on listening to the speaker’s own discourse markers because they are tempting to disregard.

Lawyers may think that they can listen most efficiently by disregarding most discourse markers and focusing on the “real” content they are hearing. I confess to having tried this in many past conversations. But disregarding discourse markers is actually a really bad idea. They are an important source of information about the speaker’s attitude toward the conversation itself. They can:

  • highlight important events in a narrative;
  • help listeners follow a speaker’s train of thought;
  • help listeners recover from a “repair”; or
  • show the relationship between two statements.

This list is quoted from a linguistics article by Fox Tree and Schrock, Oh What a Difference an Oh Makesfound in this PDF. The article reports on language experiments with a fascinating conclusion: listeners better understood speech content when it included a discourse marker as simple and seemingly insignificant as the word “oh.” When listeners heard the same speech content without the “oh” or with just a pause where the “oh” would be, they didn’t understand the content as well.

For listeners, recognizing and showing responsiveness to a speaker’s discourse markers can build trust and move the conversation forward. Misinterpreting or entirely missing a significant marker can set the conversation back and make the speaker think less of the listener.

Many markers focus on the content of the conversation:

  • Signaling an important idea, such as “The key point is . . .“
  • Highlighting an objection, such as “Here’s the thing . . .”
  • Marking an attempt to end the conversation, such as “So the takeaway from all of this is . . .”

Some discourse markers seem more personal than others, and may serve as a sign of submission or authority:

  • Using the listener’s name, as in “Casey, . .” or “Your honor, . . .”
  • Phrasing the message directly and personally to the listener, such as “What I need you to understand is . . .”

And some discourse markers involve repackaging part of the conversation to relate it to a new piece of content:

  • Rephrasing an idea and moving into a new idea as another item in a list, such as “In addition to the time and energy it will take to litigate this issue, there are also hard costs to consider.”
  • Rephrasing a concern and subordinating it to a larger concern, such as “And although the timeline is challenging, it’s going to be very difficult to justify waiting any longer.”

Discourse markers are a universal trait of language in both speech and writing. Jill Ramsfield and Christopher Rideout have written about discourse markers unique to legal writing such as “whether” for introducing a traditional Question Presented. In spoken legal discourse, perhaps “your honor” in addressing a court is the most ingrained discourse marker? One of my favorite law school professors, a frequent advocate before the United States Supreme Court, described using “your honor” as a filler when she was brainstorming what to say next. Readers: please chime in with further thoughts on uniquely legal discourse markers.

What really matters for lawyers is to recognize the importance of discourse markers. Maybe a more memorable word for the practical lawyer is “signals”: discourse markers can send a *signal* about what a speaker thinks. They could signal what a client thinks is really important or when a judge is ready to move to a new argument.

Noticing these signals can increase lawyers’ effectiveness as listeners because by doing so, they will better understand the speaker’s content in the abstract as well as the structure of the content and the speaker’s attitude toward the content.

P.S. This post started as a tirade against the conversation stopper “yes, but,” which is a type of discourse marker provided by a listener in taking over the conversation. Here’s a quick summary of how “yes, but” works as an effective conversational technique: it doesn’t.

P.P.S. For a law-review treatment of conversation theory including discourse markers, I highly recommend Linda F. Smith, Always Judged: Case Study of an Interview Using Conversation Analysis. It contains transcripts of effective interviewing techniques. As the abstract states:

Legal interviews are infrequently recorded and rarely studied. The few empirical studies of actual legal interviews have been primarily critical of the lawyers for being too controlling, eager to impose a solution on the clients, and uninterested in the message the clients want to convey. This article presents a case study of something heretofore unavailable – an experienced, expert attorney conducting a successful initial interview with an actual client. This article uses ethnographic conversation analysis to describe the interview in terms of question form, interruptions, control of the floor, and expressions of empathy. It relies upon the insights from prior empirical studies and shows why this is an excellent interview – the client not only is heard, but feels understood, rather than “judged,” by his lawyer.

Legal communicationLegal skillsPeople skills

Lawyers and hearing loss: seeking input

Earlier today I participated in a very difficult conference call. I was listening on a handheld cordless phone. On the receiving end, a cellphone set to speaker was on the table surrounded by seven people.

These folks—who made every conscious effort to include me—also conducted the meeting in the grand tradition of meetings, often mumbling, interrupting, and talking over one another. I could only hear about half of what was said. This frustrating inability to hear and follow the conversation was a reminder of what people with hearing loss face on a daily basis.

http://www.flickr.com/photos/46123010@N04/9115159515/sizes/m/in/photolist-eTtzmF-8wHYSe-eR78eL-aPfUKi-aMvbFi-7SLwkE-cxnevo-cexWis-as6RP3-cfvjXL-8JHzNc-dXq86q-d5ZPzo-bFJasF-aTzwdD-dHK7ie-dPZvZu-8aDsm5-8aAdsM-edmbqU-89HtV8-8Z81U7-cw9zc3-dZEV25-f41Cof-aahz9T-b7jew4-bN88Yp-dfq89i-9ojb1K-89iRmy-a4WecS-cpjPkd-cpk6uq-cpiJaj-cpjdfb-cpjchd-cpk8PS-cpiU4y-cpjs5j-cpiHB1-cpjkZL-cpjiEu-cpjbgJ-cpjFCj-cpjBo3-cpkb33-cpkiq3-cpiEdN-cpjWoQ-cpjKM9/

Thermostinept/Flickr

If you are a legal professional dealing with hearing loss and if you would like to be interviewed or share advice with Listen Like a Lawyer’s readers, please comment below or e-mail me at jromig@emory.edu. The hope is that this conversation can help affected legal professionals to recognize and address hearing loss, and help others understand more about this issue in the legal workplace as well.

Client developmentLegal communicationLegal skillsPeople skills

Getting Better at Listening

Thanks to the International Listening Association, I learned of this video  from HuffPost Live. It’s a quick, fun, informative look at problems with listening and ideas for improving. The panelists offer suggestions for managing your own thought process when you feel like you’re about to “check out.” The panelists also delve into different types of listening and the consequences of good and bad listening. I recommend the video for its informative and sometimes funny take on listening problems and solutions. (There is a really funny movie clip about halfway through.)

Please feel free to comment on how the ideas in this video apply to lawyers and legal professionals. I think the critique of listeners who merely “problem-find” is deeply important for lawyers.

Law practiceLegal communicationLegal skillsPeople skills

Halloween Special: Four Kinds of Scary Listeners

On this Halloween—or any average workday—you may encounter some ghoulish listening practices.

http://www.flickr.com/photos/gregerravik/9065470000/

While you may not be able to trick bad listeners out of their ghastly habits, you can always treat your own conversation partners by giving them your focus and empathy.

The Smartphone Vampire

Blackberry may be losing market share, but the proliferation of listeners who bail from conversations to look at their smartphones will outlast us all. The descendants of the original “crackberry addicts” are like eternal vampires sucking the blood of meaningful connection out of their conversations.

The Robot Programmed to Listen Actively

Active listening is an important technique that can become robotic if taken too far:

Client:       I’d like to get an update on my case.

Lawyer:    You’d like to get an update on your case. Yes, let’s do that because it’s very important to keep you updated on your case.

Client:       Right, how’s it going?

Lawyer:    You want to know how’s it going. It is going very well. In terms of the “how,” we are preparing a motion to exclude evidence. In terms of the “it,” we haven’t talked settlement with the other side yet, but with your permission can do so this week. And in terms of “going,” discovery has closed and the trial date will be set in the next month or so. How’s it going for you?

As Michael Nichols writes in The Lost Art of Listening, active listening fails when it’s a self-conscious technique:

There’s nothing wrong with active listening. Acknowledging what people say is part of the essence of good listening. The problem is that when listening is reduced to a laundry list of how-tos, some people make more of an effort to show that they’re listening than to actually listen.

The Listening Mask

Some people look like listeners. They act like listeners. They are skillfully camouflaged as genuinely engaged in the act of listening. But these outward indications of listening turn out to be part of a convincing listening costume. Bernard Ferrari, in his book Power Listening: Mastering the Most Critical Business Skill of All, calls them “Pretenders”:

You’d walk out his office feeling like a million bucks, won over completely by his knowing, empathetic smile. It might take a while, but eventually you’d realize he hadn’t acted on anything you said, even though he had given every indication he was processing what you had to say and was in agreement.

What lies beneath? Are they not paying attention, not understanding, or not motivated to listen? The listening mask makes it hard to know.

The Hostile Tape Recorder

As with the Listening Mask, no outward clues tip you off that your conversation partner may actually be a Hostile Tape Recorder. Talking and listening proceed as usual. But this person’s brain is not only a brain; it is also an audio recorder. You say something to this listener and there is an imperceptible “click” as your words are recorded.

Like a suspense film that shocks and thrills by bringing back the supposedly deceased victim from the first scene to deliver the climactic blow, the Hostile Tape Recorder can shock and dismay with the capacity to bring back exact words, in quotes, from the dead. Usually in nasty e-mails.

So on this Halloween, beware this parade of horribles. Feel free to share your own stories of the most hideous listener you’ve encountered in the comments below. Leave out the identifying details, but please share your horror stories of listening. And Happy Halloween. 

This article was inspired by Bernard Ferrari’s Power Listening. Ferrari describes several archetypes of poor listening. As indicated above, one is the “Pretender.”  There is the “Opinionator” who “listen[s] to others really only to determine whether or not [their] ideas conform to what the Opinionator already knows to be true.” And there is the “Perseverator” who “appear[s] to be engaged in productive dialogue” while actually “editing on the fly, fine-tuning what he is saying through constant reiteration.” Ferrari pigeonholes some other problem listeners; his book also offers a lot of good C-suite-type advice for effective listening. I recommend Power Listening and will explore it in more depth at a later (non-Halloween) date.

Photo credit: Flickr/Gregor Ravik/CC by 2.0