Category: Legal technology

Unicorn lawyers

Jennifer RomigLeave a comment

What is a “unicorn skill”? It’s a skill that reasonably performing professionals in the field do not have, which is why they are just…reasonable. They can still do their job but are not “A” players. A unicorn skill is thus rarely found, and those who have it stand out as…unicorns.

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Courtesy Bernard Goldbach/Flickr/CC by 2.0

I learned about the term “unicorn skill” from this article (quoting John Maeda’s Design in Tech report) claiming that for software designers, the unicorn skill is not coding (as traditionally thought) but good writing. Coders who are also great writers are unicorns:

A core skill of the interaction designer is imagining users (characters), motivations, actions, reactions, obstacles, successes, and a complete set of ‘what if’ scenarios. … These are the skills of a writer — all kinds of writers, but particularly fiction, screenwriting, and technical writing.

(This segment of the article is quoted from blogger Susan Stuart.)

The unicorn idea connects to a larger meme within the design community about unicorn designers, who—according to http://www.uxunicorn.com —can be described as follows:

Mythical user experience designer with an advanced and adaptive skill range. Outstanding skills in graphic design, rapid prototyping, front end development, user testing, technical specifications, marketing and branding. It does not have an opinion, it has a process, and will harmonize with any environment.

Unicorn designers are basically “supernatural beings” that may or may not exist, but that hiring managers want. They combine the best of technical skills with the best of soft skills:

It’s important to be able to receive and give feedback and have the necessary soft skills to work efficiently with others. Fortunately, with the understanding and expertise of different skill sets, unicorns should be able to develop deep empathy for the people they are working with.

Obviously there is some skepticism here about whether such a designer exists, or could exist.

Unicorn lawyers?

If that’s a unicorn designer, then what’s a unicorn lawyer? It’s not that far off from the combination of advanced technical plus soft skills described above for designers and coders. Here’s a draft description, inspired by the above and tailored to the legal profession:

Mythical recent law grad with an advanced and adaptive legal skill set. Outstanding skills in client interviewing, case analysis, legal research and analysis, mediation, litigation, transaction, regulatory compliance, social justice, efficiency, people skills, client development, and pro bono. They do not have an opinion, they have a complete skill set, and will enhance the justice production and economic advantage of any firm or agency. They are also qualified to be a solo unicorn needing no further mentoring.

Skepticism about unicorns in design work reminded me of the skepticism within legal education: can a law school can really be expected to produce a practice-ready graduate immediately adaptable to literally any legal environment? Those who aspire to produce or to be unicorns embrace a perhaps radical faith in and dedication to their own professional development.

Assuming for the moment that producing / being a unicorn lawyer is a worthy quest, can we identify one single unicorn skill—a skill that is under-appreciated, not commonly found, and highly correlated with outstanding performance in the field?

After reading the claim that writing is the unicorn skill for designers, I posited on Twitter that legal writing might be the unicorn skill for lawyers:

That idea was instantaneously shot down, with multiple sources confirming that legal writing is necessary but not sufficient—at least not in law firms that need client business. Any skill that is expected as a baseline cannot be a unicorn skill. The skill identified as more unusual and more likely to be rewarded was rainmaking. And rainmaking can, of course, be defined in various degrees of formality:

Listening as the unicorn skill for lawyers?

Listening is not unrelated to client development and even “a**kissing.” So can we say effective listening might be a unicorn skill because it is not commonly practiced at the level of excellence and is highly correlated with overall excellence?

First, it’s important to acknowledge that in almost any lawyering that involves interpersonal interactions, listening should be practiced to at least an average level of competence. Lawyers have to listen to their clients to take the facts, and listen to their supervisors to take assignments, and listen to witnesses to take depositions and conduct witness examinations at trial.

But is listening commonly practiced at the level of excellence? That means picking up the wealth of verbal and nonverbal cues that intense listening can reveal. It means making people truly feel heard. It means hearing and processing what is not being said. It means recognizing the moment of opportunity to interrupt and show engagement, versus the moment to sit back in silence and let the speaker continue unabated. The judgment and skilled intuition needed for this type of listening is why it goes into good lawyering in a technical sense and good rainmaking in the social sense of being liked and trusted. Finding all these skills in one person (plus necessary but not sufficient skills like legal writing) makes for a great lawyer.

And—according to the hypothesis of listening as unicorn skill—you don’t see top lawyers who are not also really strong at listening. You might call it charisma, but listening is part of what these extra-effective professionals do so well, and that others don’t. They take in a lot of information efficiently in their conversations and remember it. When they repeat questions, it’s not because they missed something, but to see if the speaker answers differently or to refocus on a crucial area. They may follow up in writing with precision to pin down the recipients and preserve their “record” for later.

Even in settings not traditionally understood as emotionally charged, they help others feel heard, efficiently, because they subtly manage the conversation. That’s part of what makes for great rainmaking. They may gravitate toward and be promoted in jobs that reward personal networks and interpersonal skills, e.g. negotiation and business development. After interacting with a skilled listener, people may not identify listening as the exact reason they are impressed, but they walk away with a sense of confidence and trust, and a positive impression. Those without the same skills in listening are fine, average, reasonable, even very good—but not unicorns.

Although I’ve made the case for listening as a unicorn skill, I am genuinely interested in others’ opinions of what the unicorn skill for lawyers may be.

For example, Lucy Endel Bassli has gone in a completely different direction, arguing that a unicorn lawyer is someone who “likes process and seeks data.”

When we look across the profession, what skill is under-appreciated, not commonly performed at a high level, and signifying truly excellent performance in the field? Have you ever interacted with someone you consider to be a “unicorn lawyer”? If so, what led you to that conclusion?

Is attention personal or professional?

Jennifer Romig1 Comment

A law professor’s New York Times op-ed, “Leave Your Laptops at the Door to My Classroom,” prompted lots of discussion on blogs and Twitter. Should law students be told and required to close their screens and (to the extent this is even possible) pay attention in class?  Or should they have the freedom to decide whether to engage in behavior that may (or may not) hurt their learning, disrespect classmates, and create a distraction?

I think a hard question here is this:

Is attention personal or professional?

 

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Flickr/UTC Library/CC by 2.0

 

If attention is personal, then the student should have the freedom to decide whether and how to use a laptop. It’s the culture of American education to wax nostalgic about daydreaming, note-writing, talking to one’s neighbor.  The teacher takes countermeasures, seizing notes and flashing the light switch on and off. But there’s something heroic about the student’s personal quest for autonomy and freedom to think and stage whisper about . . . whatever. And even more so in law school, which is a professional school for grownups who (opponents to Rosenblum’s position argue) should be able to make the decision when and how to pay attention, and when and how to take notes.

If attention is professional, then law professors have a better argument on laptops. What is a law school? I googled this question and came up with a law review conveniently titled the same, by Prof. Stephen Wizner of Yale. Granted it’s from 1989, but this still seems like a decent answer for today:

What is a law school? That is a question that ought to have a fairly straightforward answer: a law school is a professional school for the education and training of lawyers. If we know what lawyers do – or ought to do – we should be able to design a curriculum that will prepare law students to carry out that professional role in a competent, ethical, socially responsible manner.

Paying attention is part of being competent and ethical. And, I would argue, seeming to pay attention is also part of being competent—or at least part of being able to attract and retain jobs and clients. Judicial ethics rules officially sanction “the appearance of impropriety.” On a far more unofficial level and a far more pervasive scale, potential employers and clients sanction “the appearance of inattention.” They don’t give jobs to candidates who don’t seem to be listening and paying attention in an interview. They don’t return more work to an associate who doesn’t seem to be listening and paying attention when meeting with a partner. And they don’t give their legal business to lawyers and law firms who don’t seem to be listening and paying attention in a “dog and pony” show to demonstrate their desire and ability to take on a new case.

This connection of the law school classroom to what lawyers actually do is part of Professor Rosenblum’s argument for banning laptops:

Students need two skills to succeed as lawyers and as professionals: listening and communicating. We must listen with care, which requires patience, focus, eye contact and managing moments of ennui productively — perhaps by double-checking one’s notes instead of a friend’s latest Instagram. Multitasking and the mediation of screens kill empathy.

Likewise, we must communicate — in writing or in speech — with clarity and precision. The student who speaks in class learns to convey his or her points effectively because everyone else is listening. Classmates will respond with their accord or dissent. Lawyers can acquire hallmark precision only through repeated exercises of concentration. It does happen on occasion that a client loses millions of dollars over a misplaced comma or period.

The importance of these skills leads him to the following conclusion:

My students need to learn how to be lawyers and professionals. To succeed they must internalize an ethos of caution, care and respect. To instill these values and skills in my students, I have no choice but to limit laptop use in the classroom.

The reaction of the legal and broader education communities varied quite a bit, from cheers to jeers. Personally I haven’t banned laptops. I like being able to ask people to quickly look something up as part of their interaction with my writing class, and I share materials on my course site that students can download and take notes on. This is a writing class—not a pretrial lit class with interviewing skills—so listening and paying attention are an implied but not explicit part of the class goals. If I were teaching an interviewing class, listening and paying attention and not looking at a screen would be very open and transparent parts of the evaluation and grade. But I’m not, and neither is Prof. Rosenblum as best I can understand. (He mentions a stilted, unproductive discussion in his class on sexuality and the law as the catalyst for his decision to ban laptops.)

So one way to ask the question is, how much does a professor assume the responsibility of teaching and valuing soft skills relevant to students’ professional success? This is both a question of traditional professorial autonomy and preference (how much does each professor actually want to do so) and of institutional decisions (should soft skills be pervasively taught and modeled; or cabined within certain dedicated classes and domains)? For example, a career services adviser should certainly be giving a student feedback on focus and perceived attention level during a mock interview. And any student who gets distracted by a smartphone in the midst of interviewing a simulated client—or heaven forbid, a real client—should be given a bad grade.

It’s perhaps ironic for a listening blogger that my decision arguably diminishes the value of listening in my own classroom. I don’t think—I know—that paying attention and listening will help students get jobs, get better assignments, and get clients. And paying attention and listening will help them do their jobs, exceed expectations on individual assignments, and lead clients to want to give them more work. I guess I want them to have the freedom to take notes and encounter the world of information necessary for my class using their laptops—while also developing the mental agility and personal willpower to appropriately switch back and forth from computer use to personal listening. Those who can do this are more likely to thrive professionally, and those who cannot are more likely to . . . not thrive.

So there is no clean answer and thus no single approach. Attention is both personal and professional. How law professors teach and train new lawyers will continue to hover delicately over that line.

Resolve to Use Your Device as a Tool—and to Resist Being Tooled by It

Jennifer Romig1 Comment

2016-9-jack-pringle-croppedListen Like a Lawyer is grateful to share this post by Jack Pringle, a partner at Adams & Reese in Columbia, SC. Jack is a litigator, appellate advocate, and information technology attorney. He publishes on Medium and LinkedIn.

Introduction

It’s that time of year: reflection and some soul-searching about what to do differently when we turn over a new leaf on January 1st. Let me offer a modest proposal.

The New Body Part

Everyone reading this post has a smartphone. (Ok, Jared Correia does not have a smartphone, but the rest of you do). And chances are you are not going back to a flip phone, a bag phone, or a rotary dial phone hanging on the wall in your kitchen.

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. — Chief Justice Roberts, Riley v. California.

And I know you have some legitimate uses for your device: very convenient to get things done at any time and wherever you are. Ridiculous amounts of computing power and broadband internet speeds and video and pictures and those GIF memes, emojis, etc., etc. I get it.

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But I am pretty sure that none of us planned to be on our devices constantly, at least not in the way we actually use them. Be honest: when you are on your smartphone, how often are you doing productive things? And how often are you doing “unproductive” things intentionally?

I am not being a scold here. No one enjoys playing as much as I do. The question is whether you decided to play, or whether your device just happened to be there and you started swiping and typing.

Are You Using the Device, or Is it Using You?

Bright, shiny devices that are so easily accessible and so full of bells and whistles tend to hijack self-control. And left to our own devices (thanks, I will be here all week), we are likely to create our own little Skinner Boxes—with games, social media sites, and constant checking of all our information streams—all the while not knowing that we’re doing it.

Your attention is being sought and used relentlessly by those doing business in the online world.

“If you’re not paying for something, you’re not the customer; you’re the product being sold”. — Andrew Lewis.

Technology as a Servant, Not as a Master

And when computer tools are using us, we don’t get a chance to determine the ways in which we can use these technologies as part of our “extended mind”- allowing computers to perform tasks that free up our minds to do higher-level thinking. That higher-level thinking is what is going to enable work and workplaces to continue to evolve as automation advances.

In other words, if you are going to have your device as another appendage, then put it to work for you.

Train Your Mind-Try Meditation.

Headspace is just so easy to use. And you can use it anywhere. At anytime. Carving out those quiet moments may create the space for you to see the way your minds works, and how these technologies have commandeered your attention and created the idea that you are so “busy” all the time.

And I certainly am a proponent of getting quiet—whether through meditation, getting outside, exercising, or undertaking other pursuits—and away from devices altogether. But I don’t think it is an all-or-nothing proposition. The key is to have the space and frame of mind to discern what tools to use and when. And to realize who or what is being used.

Give Your Mind a Rest.

See above. In addition, stop keeping all these ideas in your head. Use Evernote or a similar program to memorialize and organize things for later use. If the device is going to be with you at all times, at least take advantage of that fact. As the late great Mitch Hedberg remarked:

I sit at my hotel at night, I think of something that’s funny, then I go get a pen and I write it down. Or if the pen’s too far away, I have to convince myself that what I thought of ain’t funny.

Free Up Your Attention

Quit complaining that you don’t have time unless you have gotten smarter about the way you use your time. Try Boxed. Or Amazon Prime. The idea is to use your time and attention up to do meaningful things. An afternoon of shopping and hauling things around is not meaningful in my world when there are available alternatives.

Feed Your Mind

There has never been a better time to learn new things. And these devices make myriad information sources available to you at any time. Below are just two examples.

Listen to Books. It has never been so easy to have great content literally at your fingertips. Consider a subscription to Audible, and listen while you drive, work out, walk, or otherwise have downtime. If you are looking for recommendations, click here.

Listen to Podcasts. See above. Long-form discussion. Topics directly related to your profession, interests, or entertainment choices. Always available. Pushed directly to your device. You don’t have to do anything but click and listen. Podcasts for lawyers? Click here.

Conclusion

The age of machines (artificial intelligence, machine learning, autonomous vehicles, the blockchain) is only just getting started. The changes in the way we live and work are going to be significant (and arguably have already been significant). In order for humans to figure out where we fit in, we have to have lots of attention and figure out where to spend (pay) it. That means understanding these tools—their benefits and risks—and making sure we use them wisely and effectively.

GIF courtesy of GIPHY via Huffington Post

See Andy McDonald, 11 Ways Smartphones Are Not Making Us Any Smarter, Huffington Post (March 24, 2014)

Listening and legal tech

Jennifer RomigLeave a comment

I have followed Mike Whelan, Jr., on Twitter for a while now but only recently discovered his blog, Lawyer Forward. Mike is a Texas family lawyer and law-practice coach for lawyers who founded a CLE conference, also called Lawyer Forward. Whelan says his “ninja thing” is “teaching and cultivating relationships.” It’s therefore not surprising his blog has touched on both practical and personal aspects of listening, such as his appreciation for legal tech vendors who actually listen to lawyers speaking about their needs.

Mike’s most recent posts were inspired by social-media chatter about the Canadian legal tech conference, LexTech16. He wrote about it here and here. In his first post “It’s Not That We Hate Tech, It’s That We Hate Your Tech,” he  describes a simple method for deciding whether to spend on tech:

[T]ransactions happen under fairly simple dynamics: you give me something that I want more than the money in my pocket. If you don’t, there’s no sale.

Thinking about the payoff of legal tech brought up similar questions about the potential value to lawyers of time spent working on their listening. Also: does legal tech itself hold any promise for helping lawyers with listening and communication more broadly?

As far as the value of working on listening, I started writing this post with the idea of claiming there is no opportunity cost to better listening. There is no tradeoff! Effective listening should enhance any other choices a lawyer might make, whether the lawyer’s niche is in virtual drone lawyering with alternative fee arrangements based on social-media marketing or trusts-and-estates lawyering in a brick-and-mortar setting with retainers and billable hours based on marketing at the Rotary Club.

But that idea is not really right. There is an opportunity cost to the effort of improving the skill, even if the skill itself has no downside.

To use the most obvious opportunity cost I could think of, what about going to mediation training for 40 hours? Mediation and listening aren’t exactly the same thing, but any good mediation training should be spending a good chunk of time on effective listening.

So, to use Whelan’s value question in a broader hypothetical sense, would abandoning all other activities for 40 hours of mediation/listening training be worth it for a lawyer? This assumes the lawyer isn’t seeking an official mediation credential but rather thinking of investing in better listening more generally. Competing lawyers may be winning and keeping clients (as well as prevailing in negotiations and cases, etc. etc.) because they have better listening skills. But it’s very hard to prove that’s actually happening. So how should a lawyer or firm invest for effectiveness over the long term?

Here, additional parallels with legal tech emerge. Assuming a lawyer has decided in principle to work on listening via mediation training, how does that lawyer go about selecting the most effective training? One article from Mediate.com on how to select mediation training notes several challenges:

  • Potential participants don’t know the right questions to ask to select appropriate mediation training.
  • There’s no uniform regulation (nationally) over mediation training, although many states do regulate mediation training.
  • There are different theories within the field about what mediation even is and how it should work.
  • “Although the majority of organizations that provide mediation training are legitimate and are staffed by qualified trainers, there do exist mediation trainings that fall far short of accepted standards . . . .”

I’ll note that Georgia is strict in regulating mediation training. And I had a wonderful experience with 28 hours of mediation training towards a Georgia certification. It was fast-paced, well-supported, both practical and theoretical, and—most of all—immediately useful.

But beyond the challenge of selecting quality training, another challenge (threat?) is the idea that investing in listening training just wouldn’t help. In essence, a lawyer might think it would be harmless but probably also be a waste of time and resources. This attitude is likely to overlap with a “fixed mindset” about listening—the (mistaken) belief people’s listening skills are fundamentally set and cannot be appreciably improved with effort. When I started this blog, someone told me, “I’m a bad listener and always will be. People who work with me get used to it.” Just as some lawyers may resist even good legal tech because it doesn’t seem to them like it would really make a difference, lawyers might resist good methods for improving their communication skills for the same reason.

This resistance leads back to legal tech itself, on the merits. Whether you think listening is a fixed or learnable skill, is it possible that legal tech somehow revolutionize, disrupt, or at least modestly improve communication among people in the legal field?

Some tech startups—particularly those that facilitate online negotiation or online lawyer-matching—actually seem designed to replace face-to-face contact and perhaps thus diminish the importance of listening. The classic definition of listening requires the presence of “spoken and/or nonverbal messages,” both of which online communication excise from the interaction—perhaps for good reason in some situations. This roundup post on LexTech16 mentioned online dispute resolution for resolving family disputes in England. Likewise, the coparently app helps separating and divorcing parents “have less conversations with your ex and reduce conflict.” (Coparently and a number of other legal tech startups are listed on Bob Ambrogi’s recent, updated list of legal tech startups on LawSites. Click the link in his post to see the list.)

Other startups hint at the idea they could free up a lawyer’s time for other tasks. “Ross,” the AI-driven research startup based on IBM’s Watson, suggests it “lets you get back to being a lawyer.” So, to take a positive view, improved efficiency through excellent legal technology should mean less time spent manually reviewing bills or doing legal research, etc. etc. In turn, legal tech could mean more time for other professional or personal activities. And at least one possibility for what to do with such freed-up time has to do with listening—namely, more face-to-face contact and other human interaction.

Legal tech has potential to help lawyers (and others) with their communication more directly. For example, when we will see a commercial “sociometric device” that would report social metrics—such as a lawyer’s rate of listening versus talking? Kenneth Grady talked about these devices on the Seytlines blog:

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

We’ve all heard “if you can’t measure it, you can’t manage it.” The idea of these sociometric devices opens new possibilities for measuring listening, generating data previously available only to communication scholars with extensive research support. Commercializing a device like that would be quite the marriage of listening and legal tech.

Post script: I mentioned above that Whelan’s blog talks about listening from several angles. One of those angles is pretty personal. Whelan has done readers a service with a series of open and honest posts on his wife’s ongoing struggle  with chronic illness, and how he manages his practice while supporting his wife and maintaining their relationship. As he says, it’s a story of “pushing through difficulty.” Here’s part 5 of that blog series; check out Lawyer Forward to see the earlier posts.