Category: Legal skills

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The Lawyer’s Ethical Duty Not to Listen

Lawyers have a duty to listen to their clients, as discussed in an earlier post. Lawyers also have a duty not to listen to certain information.

Do not listen to a person represented by another lawyer.

A lawyer may not listen to information provided by a person represented by counsel, as set forth in Model Rule of Professional Conduct 4.2. In short, communication with a represented person is a terrible idea! The rule itself says that in representing one client, a lawyer “shall not communicate about the subject of the representation” with another person represented by counsel. (Exceptions apply when the other person’s lawyer has consented, or when a court order or other law allows the communication.)

Listening includes having other people listen.

Lawyers may not circumvent the prohibition on communicating with represented parties by having non-lawyers take over the communication. Rule 8.4(a) defines professional misconduct to include violations done “through the acts of another.”

Listening is still listening, even without asking a single question.

The prohibited acts of listening include completely passive listening as well as active questioning. In In re Howes, 940 P.2d 159 (N.M. 1997), the New Mexico Supreme Court upheld sanctions against a prosecutor for listening to several statements by a criminal defendant without his defense counsel’s knowledge. The prosecutor did not initiate the communications and never asked a question during any of these statements. He merely “listened to everything defendant had to say.”

The New Mexico Supreme Court roundly rejected the idea that this was not communication: “To argue that one does not violate [the precursor to Rule 4.2] if one does not ask questions or impart information borders on sophistry. People do not compromise their positions or waive their defenses by listening to an attorney; they do so by talking while the attorney listens.” The attorney, who was quoted by the court as lacking remorse for his actions, was publicly censured and ordered to pay costs.

Unethical listening isn’t limited to dealing with represented parties.

Inappropriate listening could subject a lawyer to discipline under Rule 8.4 even if it does not involve communications with represented parties. Rule 8.4 defines professional misconduct to include conduct “involving dishonesty, fraud, deceit, or misrepresentation.”

For example, in In re Matter of Schwartz, 599 S.E.2d 184 (Ga. 2004), a lawyer accessed and listened to voicemails at the firm where he no longer worked. He went on to randomly delete some of them. The lawyer admitted violations and was suspended under a voluntary plan, which the Supreme Court of Georgia affirmed. The reasoning in the case did not separate out the wrongfulness of the act of listening to the voicemails from that of randomly deleting some of them. The court found suspension is generally appropriate when “a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal profession.” This case is among those listed in the ABA Annotations to Rule 8.4.

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A “KISS Principle” for Listening

This post continues Listen Like a Lawyer’s end-of-the-week tradition of sharing short links, images, and other concise content about listening.

In the college textbook Listening: Process, Functions, and Competency, authors Debra Worthington and Margaret Fitch-Hauser present brief advice from a trial consultant about listening. “For attorneys, one of the key principles to listening well begins with setting up an atmosphere conducive to the clients’ believing they are listened to,” says Diane Wyzga, trial consultant and founder of Lightning Rod Communications.

To do the job of listening to what clients want or need to say, one phrase is particularly helpful:

“Tell me more.”

This, Wyzga says, is the “most invaluable statement you can ever use to encourage someone to speak.” There is no need to craft strategic questions, she says, and using this simple phrase “allows the client’s narrative story to emerge.”

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Trial lawyers: five key contexts for listening

Effective listening has universal themes, such as the role of focused attention. But much of listening is also context-specific. Listening in a public meeting is obviously different than in a one-on-one conversation.

Trial lawyers face at least five distinct listening contexts. Each presents different listening opportunities and challenges. Listen Like a Lawyer is grateful to share this Q&A on listening contexts with trial lawyer, mediator, and trial-advocacy instructor Jay D. Brownstein.

brownstein-photo-L

LLL: Jay, thank you for your time. What do you think are the most important contexts that trial lawyers need to be thinking about when they think about their listening?

JDB: Generally speaking, there are several areas where trial lawyers need to effectively listen:

  • First, when speaking with potential and existing clients.
  • Second, in witness examination, both in deposition and at trial. As lawyers, we are often intent on covering a predetermined outline of topics and questions. But effective advocacy requires us to carefully listen and respond to what the witness is saying.
  • Third, communicating with judges at the trial and appellate level.
  • Fourth, communicating with juries. In voir dire, you listen intently to potential jurors’ answers, looking for clues as to their beliefs and predispositions. In trial, you must “listen” to nonverbal communication from jurors (as well as witnesses and the judge).
  • Fifth, mediation, an important tool for conflict resolution. It has become a necessary aspect of litigation and requires strong listening skillls.

LLL: What are the listening challenges in conversing with a potential client?

JDB: The initial client interview can be especially challenging because the client and attorney have somewhat different goals. The client wants to tell her entire story, while the lawyer is trying to quickly determine if the client has a case worthy of further exploration.

In telling their stories, clients usually don’t know what facts are important. They frequently spend time telling you things that may have little legal significance, while leaving out truly important details. The lawyer must carefully listen to what the potential client is saying (or not saying), but also guide the conversation to facts important to the legal claim analysis.

So there is a constant tension between allowing the client to talk (and being professional and courteous), and quickly learning the necessary facts to make a case determination.

LLL: How does the listening task change when your potential client becomes your actual client?

JDB:  Throughout a representation, it is critically important to maintain effective communication with your client, which always requires listening. Clients often try to tell us things that can be very important to a successful outcome of their case, although we may not always be receptive to it. For example, to effectively advocate pain and suffering in a personal injury case the trial lawyer needs to fully explore and come to understand how the client’s injuries have affected them.

In all cases, it is critically important to develop and maintain a relationship of trust with the client that can only occur through effective listening. If clients are to entrust us with their most important confidences—which can be crucial to achieving a successful result in their case—they must know that we are listening and trying to truly understand them and their circumstances.

LLL:​ I saw a statistic from one state’s court system that only 7 percent of cases go to trial. That means a lot of them settle, and the mediation process plays a major role in settlement. How can lawyers use listening to help their clients during mediation?

JDB:  Over the past 10-15 years, mediation has evolved to become the primary means of resolving cases short of a jury trial. Available statistics suggest that a high percentage of mediated cases settle either at mediation or shortly thereafter.  For example, the EEOC reports that in 2012 over 76% of its mediated cases settled within 100 days after mediation. For clients and their lawyers, mediation is often the last best chance for a certain resolution without putting their fates in the hands of strangers (juries and judges). Lawyers should not only prepare themselves for mediation as though preparing for trial (by reviewing all discovery, depositions, research on key legal issues, etc.), but they must also prepare their clients.

This preparation involves not only explaining the mediation process, but also listening and openly talking with clients about their expectations. It does little good to tell a client what she can expect in a mediation without also helping her to set goals and manage her own expectations. Listening plays a key role in this – you must first learn and understand how a client thinks before attempting to help modify that thinking and allow for the best chance of a successful mediation.

LLL:  If the dispute lasts long enough, at some point, the lawyer will take and defend depositions and eventually examine witnesses at trial. What do you think are the keys to effective listening in the context of witness testimony?

JDB:​  Particularly in early years of practice, many lawyers prepare for depositions and trial testimony by developing extensive witness outlines covering numerous topics and containing detailed questions (sometimes including the expected answers). But as trial lawyers well know, testimony never goes exactly as planned or scripted, especially in the case of direct testimony. Learning to get the witness talking, listening to what the witness actually says (as opposed to what we expect or hope to hear), and following up to the actual responses, is critical to effective examination. This is something that, like many experienced practitioners, I am constantly aware of and seeking to improve upon.

The more an examination, even cross examination, is like a true conversation with each side listening and responding to the other, the more effective you can be at eliciting key points (good and bad) you want the jury (or judge on summary judgment) to hear and remember. All witnesses can surprise and frustrate a trial lawyer; the key is to listen and understand what you can and can’t do with a witness.

LLL: For the trial lawyer, a very important audience is the trial judge. How can lawyers use listening to better understand the trial judge?

JDB:  All trial judges are busy with heavy case dockets, and appreciate brevity and clarity. On any given civil motions calendar there could be 40 to 50 cases. The judge needs to know what type of matter is before her (discovery motion, procedural issue, etc.), what she is being asked to do, and why. Judges will generally tell you what they need to understand or hear in order to issue a ruling.

The most skilled lawyers I have observed listen carefully to questions from the bench, whether directed to them or opposing counsel, and react by instantly tailoring their argument to the point or points the judge seems most interested in or confused by. Most importantly, the best lawyers don’t waste the court’s time with unnecessary argument. If a judge indicates, directly or indirectly, that they likely agree with you, acknowledge it and move on. If there is nothing further to say, stop talking and sit down.

LLL:When cases do go up on appeal, listening during oral argument is another intense experience. What are the listening challenges of oral argument, and how do you deal with them?

JDB:  ​In appellate advocacy, the same principals apply but with even greater force. Accomplished appellate lawyers say that the best appellate arguments are like living-room conversations, except that the advocate’s window of opportunity to persuade is narrow and can easily be lost if the lawyer does not carefully listen and directly respond to questions.

Usually, a question from the bench is much more than an opportunity to expound on an issue or portion of your prepared argument. It tells you exactly which part of your argument is most troubling to the court or to the particular judge with the question. And it gives you the chance (in 60 or 90 seconds) to persuade that judge, and perhaps others, to your position.

Preparation is key, as you must anticipate and be ready to immediately give your best response to a myriad of issues and related questions from the bench. But absent insightful listening, the chance to persuade will be lost.

Jay, thanks so much for sharing your thoughts with Listen Like a Lawyer.

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Profile of a great listener—and what lawyers can learn

“Listening well is a gift.” Malcolm Gladwell explores the gift—and curse—of listening in this BBC profile of Vietnam consultant Konrad Kellen. The profile has some fascinating and sad insights into 20th-century politics and war. But the main point is to explore Konrad Kellen’s abiding gift as a listener. Although Kellen’s work was in public policy, his listening gift has something to teach lawyers as well: he listened without a biased ear, and he listened to all the relevant information in forming his analysis.

Setting biases aside, or at least trying to

Kellen was effective as a listener primarily because he could set aside his biases. Gladwell describes Kellen’s rare ability to really understand field interviews with North Vietnamese during the Vietnam War. He didn’t filter the information through a bias of predicting U.S. victory, as did other policymakers who ultimately carried the day.  This prevailing bias not only clouded policymakers’ understanding of the data but also blocked them from accepting what Kellen learned from really listening to the North Vietnamese.

Listening without bias is really crucial for good lawyering. Lawyers’ bias can interfere in many forms, from bias in favor of the client, to bias in favor of the status quo, to bias in favor of personal benefit or avoiding embarrassment or risk. Truly effective listening requires accurate and objective interpretation of the message being heard. In this way, effective listening is difficult to distinguish from critical thought itself.

Listening deeply and thoroughly

Related to Kellen’s lack of bias was his ability to listen to all of the information and then synthesize it. He didn’t stop listening when he heard what supported the prevailing view, as Gladwell describes his work with extensive North Vietnamese interview transcripts. And Kellen was able to interpret seemingly conflicting statements together in a way that produced a deep understanding of the subjects’ real mindset toward the war.

Likewise, lawyers certainly should listen comprehensively, recognizing the relationships among discrete bits of data within the message. The press for efficiency and the lure of confirmation bias both can interfere with effective listening. Although lawyers must work efficiently, effective listening also means listening thoroughly and persistently, at least well enough and long enough to be able to hear conflicting information when it exists.

The curse of effective listening?

Gladwell ultimately suggests that Kellen’s effective listening was something of a curse. Gladwell points out the “great irony” that “[t]he better listener you are, the less people want to listen to you.”

This idea of listening as a curse seems less applicable to lawyers. Of course, knowing something that others can’t or won’t appreciate—whether gleaned through listening or otherwise—is difficult. Most lawyers will probably face that situation during their careers.

But as a sweeping statement, it does not seem to ring true that lawyers who listen well are less likely to be listened to. Indeed, just the opposite seems more likely in the small-group dynamics common in law practice. By deeply listening to the messages that clients, judges, mediators, opposing parties, witnesses, and others provide, lawyers can make themselves far more effective when they do speak up for their clients.

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Judged by our listening

Effective listening is just one of many components of being effective, overall, as a communicator and as a professional. By being effective listeners, lawyers can improve how people perceive their overall communication effectiveness. Professor Neil Hamilton’s excellent law review article Effectiveness Requires Listening: How to Assess and Improve Listening Skills delves into some ideas on how this is so.

Professor Hamilton begins by noting the “exceptional opportunity” available to lawyers and law students who enhance their listening skills. Effective listening can assist students with academic performance and practicing lawyers with client relationships. Analytically, effective listening enhances problem solving and deepens understanding of a situation. Beyond that, it builds trust. So listening is a win-win-win: competitively, analytically, and relationally.

Next Hamilton quotes a study linking listening to overall effectiveness–not just in communication, but period: “[P]eople whom others perceive as the most effective individuals have strong listening skills” (citing Kerry Patterson et al., Crucial Conversations: Tools for Talking When the Stakes Are High (2002)). Patterson’s work revealed that managers judged as effective were able to encourage others to talk about high-stakes topics and to get all the issues out in the open. Part of their effectiveness was a product of  listening to various points of view before jumping into the fray.

This particularly passage in Hamilton’s article called to mind, for me, the work of Nobel Prize winner Daniel Kahneman, most recently collected in his book Thinking, Fast and Slow (New York Times review here). Kahneman, along with Amos Tversky, found that people apply a wide variety of “cognitive heuristics”—in other words, psychological shortcuts—to guide their decision-making.

These heuristics play a particularly large role in making tough decisions involving many complex factors. For example, a lawyer might be afraid to put a client on the stand when that client has an admissible prior conviction because, the lawyer would justifiably think, the jury might substitute its overall complex decision about the facts of the case for the easier decision about whether the client was a worthy person, in light of the prior conviction.

So in the context of listening, what if people use listening as a heuristic for their judgments about someone’s effectiveness as a communicator? What if people use listening as a heuristic for judgments about someone’s effectiveness, period? Both could be true.

A speaker can observe a listener’s behavior and from the outward behavior form a judgment about that person’s listening. The judgment could be wrong; a distracted-looking person might actually be a better listener than someone who sits still but is really thinking about what to say next. Yet the outward behavior sends a message that nonetheless triggers a cascade of thoughts and judgments in the speaker’s mind.

Lawyers wishing to make a good impression with clients, judges, and others should keep this possibility in mind. By showing themselves to be good listeners, lawyers can likely ratchet up others’ beliefs about their overall effectiveness. Conversely, by appearing to be poor listeners, lawyers might be compromising more than they think. (Thus a lawyer’s slip in listening to a client might call for an immediate apology to try to counteract the client’s unfavorable judgment, which would likely be forming as quickly as a summer pop-up storm in Atlanta.)

There is something about listening that, I believe, makes it a particularly likely candidate to serve as a cognitive heuristic for effective communication. Speaking is the other significant component of interpersonal communication. (Let’s set aside writing for now.) Public speaking is notoriously difficult and intimidating. So even if a lawyer begins a presentation on a tentative note, the audience’s own experience might soften any judgment about the lawyer’s overall effectiveness. You may have heard someone described along these lines: “He’s not a great public speaker, but he does a good job.”

But listening is different. I have never heard someone say, “She’s a lousy listener, but overall she does a nice job.” Not being listened to provokes frustration if not anger. This would seem especially true for audiences with high expectations of being listened to, such as clients and judges.

And listening seems pretty to evaluate, therefore making it a good candidate for the cognitive heuristic called the “substitution effect,” or “attribute substitution.” Even if a client feels at a loss to evaluate a lawyer’s holistic legal acumen, that client can substitute an easier decision: does the client feel that the lawyer effectively listened?

Thus listening would seem to have all the ingredients of a heuristic in the making, especially for lawyers. This observation brings us back full circle to Hamilton’s article exhorting the value of effective listening: “[P]eople whom others perceive as the most effective individuals have strong listening skills.”

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Validating others by listening

Today the Farnam Street blog—which has a fascinating e-mail newsletter I highly recommend subscribing to—collected and released its top posts for July. One of them was “Ten Techniques for Building Quick Rapport with Anyone.” The post is a summary and review of Robin Dreeke’s book It’s Not All About Me: The Top Ten Techniques for Building Quick Rapport with Anyone.

This book looks like something this blog could explore again more fully in the future. For now, here’s what Farnam Street had to say about the book’s coverage of listening. It’s one of the best ways to build rapport by validating the person you’re talking to:

Just listening to someone can produce amazing results. Where we run into problems is keeping our own thoughts, ideas, and stories out of the conversation. [Quoting the book:] “True validation coupled with ego suspension means that you have no story to offer, that you are there simply to hear theirs.” And there is another benefit. When the focus is on the other person and we’re not anxious to tell our own story, we also tend to remember the details. We’re mindful.

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The richness of sound

Listening gets a bad rap. A famous statistic about listening is that people remember 30 percent of what they hear, 50 percent of what they see and hear, and 80 percent of what they do. This statistic may be unsupported or based on apocryphal sources, but the gist is consistent with the wisdom of Confucius: “I hear and I forget. I see and I remember. I do and I understand.”

Actually, the world of sound provides richer information than sight in many ways. Auditory guru Seth Horowitz outlines the comparative advantage of sound in his entertaining book The Universal Sense: How Hearing Shapes the Mind. As Horowitz writes, what we take in from sight is certainly a rich vein of information: “Vision is a relatively fast-acting sense that works slightly faster than our conscious recognition of what we see.” But sound outshines visual input in crucial ways:

By contrast, animals and humans can detect and respond to changes in sound that occur in less than a millionth of a second . . . It is this faster-than-thought auditory speed, with a wide range of tones and timbres that visual color cannot hope to match and greater flexibility than the chemical sensitivities of taste and smell, that lets sound underlie and drive a fantastic range of subconscious elements in the living organism.

The particular value of sound for lawyers may not seem apparent at first. Lawyers aren’t hunter-gatherers trying to sense the first rustle of an approaching predator. But the speed and richness of auditory input can help lawyers in many, many ways. Listening to a judge’s questions at oral argument, an advocate may develop a very quick sense of whether the question is friendly or hostile—indeed before the judge has even finished enough of the sentence to reveal its substantive content. In discussing a settlement offer with a client, the “wide range of tones and timbres” in the client’s voice can very quickly tell a lawyer if the client is excited or skeptical. And sounds that aren’t exactly words—humming and hawing and swallowing and nervous tapping—are auditory input that adds to the richness of a lawyer’s perception in any situation.

Understanding how quickly sound works on the brain should help lawyers better understand and manage reactions, both their own and others’. The richness of sound adds yet another argument in favor of sometimes foregoing the e-mail for a phone call. And when on that phone call, don’t give in to the temptation to tap out a quick e-mail. They will hear that tapping and start to form an impression—in less than a millionth of a second.

 

Thanks to Seth Horowitz for feedback on this post.

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The lawyer’s ethical duty to listen

The word “listen” and its derivations appear only four times in the Model Rules of Professional Conduct and ABA Annotations. But the mandate to listen to clients pervades them. This post explores the implied affirmative duty to listen to clients. Future posts will explore lawyers’ duty to listen to non-clients and potential clients, and lawyers’ duty not to listen to certain people and information.

Lawyers must be competent, which under Rule 1.1 “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [5] to Rule 1.1 states that thoroughness and preparation include inquiry into the law and facts, as well as use of “methods and procedures meeting the standards of competent practitioners.” The word “listening” does not appear; the rule and comments do not specify the methodology for collecting information.  Yet listening is a powerful way to glean knowledge about a matter, and sometimes may be the only way to glean certain knowledge (such as a credibility evaluation).

Rule 1.4 sets out the duty of communication, again without using the word “listening” but again implying its importance. Under Rule 1.4(a)(2), the lawyer shall “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Implicitly this means listening to the client about the client’s objectives. Comment [2] states that when the client must make a decision about the representation, the lawyer must “promptly consult with and secure the client’s consent . . . unless prior discussions have resolved what action the client wants the lawyer to take.”

Through its references to consultation and discussion, the rule establishes an implied duty to listen. This duty has substantive and procedural components.

The substantive aspect is that a lawyer must listen to what the client says regarding “the client’s objectives” as well as the means of accomplishing them. Listening is implicitly required because the lawyer cannot “reasonably consult” about these things unless the lawyer has, to some degree, listened to the client’s point of view.

And listening is not strictly limited to the literal meaning of what a client says. Under Rule 1.4(a)(5), the lawyer shall “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” The means of acquiring this knowledge is not constrained. It is a rare client who would directly state, “I expect you to assist me beyond the ethical rules and the law.” Thus the lawyer must listen to the client (and any other source) enough to know when the situation implies such expectations. [The rule on lawyer as advisor (Rule 2.1) and particularly Comment [5] are consistent with this implied duty to listen to the client carefully to understand what the client wants to do, and advise the client accordingly.]

The procedural aspect of listening in Rule 1.4 is that the listening obligation is reasonable but ongoing (to a degree). Focusing first on the “reasonable” qualifier in Rule 1.4 itself, the listening obligation is not eternal and unlimited. After airing out the client’s objectives and ideas on means for accomplishing them, the lawyer should be able to fulfill the duty of reasonable consultation without further listening.

And under comment [3], when the “exigency of the situation” leaves no time for consultation, the duty to listen gives way to the lawyer’s duty to make a reasonable decision and then keep the client informed.

But the lawyer’s duty to listen is not something the lawyer can finish and forget about. Under Rule 1.4(a)(4), the lawyer shall “promptly comply with reasonable requests for information.” This means the lawyer must monitor communications with the client to be able to comply promptly. The lawyer must be open to the client’s requests for information, listen to them, and heed them when they are reasonable.

Collectively, these references and annotations convey the lawyer’s obligation to listen to clients. Many of the implicit references to listening are presented in the form of how the lawyer will consult with or advise the client. Thus the purpose of the listening is not primarily for establishing empathy or building trust—although these are important and valuable side effects of effective listening. The implied duty to listen exists primarily to allow the lawyer to speak and to act on behalf of the client.

The author gratefully acknowledges the feedback of Professor Timothy P. Terrell of Emory Law School on an earlier draft of this post.

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A model of listening

For background on listening skills, I wanted to learn more about college courses focusing on listening. The leading text seems to be Listening: Attitudes, Principles, and Skills by Judi Brownell, professor of management and organizational behavior at the Cornell School of Hotel Management. This text has a lot of insights and I will be sharing them and applying them to the legal context throughout the life of the blog.

The backbone of Brownell’s approach is the “HURIER” model:

  • Hearing
  • Understanding
  • Remembering
  • Interpreting
  • Evaluating
  • Responding

Future posts will explore each step of the HURIER model. For now, here are a few holistic observations and broad applications for lawyers:

The proportions within the model are important: Responding makes up just one-sixth of it. This proportion confirms everyone’s intuition that a bad listener is someone who is just working up a response instead of actually engaging with what the speaker is saying. Clients need to be listened to and not talked over, and judges don’t want advocates to interrupt their questions. There are endless situations in the legal professional where speakers can make oafs out of themselves by talking without really listening. Future posts will explore how to mitigate bad listening habits like this and become more effective at listening.

As another broad observation on the HURIER model, it is not meant as a strictly linear or chronological outline of listening. According to Brownell, the model is based on a systems perspective, meaning the parts of the whole are interrelated and interdependent. (She cites Littlejohn’s Theories of Human Communication on this point.) Lawyers engage in so many complex communication situations that this interdependency should be very apparent. How we as lawyers interpret and evaluate depends in part on how much we hear and whether our attention was divided at the time. We can respond by clarifying points that enhance our understanding of the situation and help a further, more substantive response, but excessive requests for clarification could suggest that our hearing and/or understanding may be subpar. The overall process is not neatly linear but iterative and self-reinforcing.

The HURIER model has insights to offer for face-to-face interaction as well as mediated conversations such as videoconferencing and mediated asynchronous communication such as podcasts, webinars and MOOCs. The individual listener’s methods may differ depending on the situation: In a face-to-face meeting, a lawyer may ask a client to repeat something or may decide not to ask, so as not to interrupt the flow of conversation but rather to investigate later. In a webinar with a learning quiz attached, an attorney may choose to “rewind” the material to repeat something because the “flow” of conversation with the recording is unimportant. Listening contexts vary for lawyers as for everyone else, but the model remains informative.

And lastly, the model skirts around difficulties nailing down a specific definition of listening, Brownell writes. Perhaps the most authoritative definition is the International Listening Association’s http://www.listen.org : “Listening is the process of receiving, constructing meaning from, and responding to spoken and/or nonverbal messages.” For lawyers, each and every piece of this definition matters very much to their effectiveness.