Category: Legal writing

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From “The Education of a Lawyer”

With bar results coming in from many states this week, it’s an opportune moment to recommend resources for newly minted lawyers. One good resource is Gary Muldoon’s book The Education of a Lawyer: Essential Skills and Uncommon Advice for Building a Successful Career. It has many good passages; here’s an anecdote on being receptive to feedback. Muldoon recounts how he was working on an article and sought out a prominent co-author:

The impact of the article would be greater if another person in the community was also on the byline, so I sought him out. He was receptive to the idea I was trumpeting and liked the article. Except for one sentence. He hated that sentence and would not allow his name to appear unless it was removed. The trouble was, it was easily the best sentence, in my mind, bringing the whole article together.

He could not be dissuaded, so I finally agreed, and the article appeared with both our names, minus that one sentence. No one was aware of the sentence that I so much enjoyed, so its absence was not noticed. The article had the effect I had hoped for.

Much of what we do in a law office is a team effort. In writing a brief or arguing a point at trial, I regularly solicit input from others in the office. If it’s my case, I’m responsible for the end product and have the final say, but is including their ideas important to make them feel like they have contributed? Should one care how they feel? Well, if I’m going to be asking for their ideas in the future, I better care. And yes, their comments, ideas, and changes are essential. You can do a good job on your own, but you need others to help bring out the best in your client’s case.

 

Clinical legal educationCollaborationLeadershipLegal communicationLegal writing

What lawyers say, and what they actually do

How do lawyers transfer their knowledge? Lawyering scholars have been talking about “tacit knowledge” since the early 1990s. A recent ABA publication encouraged law students to use their externships and other practical experiences to interact with lawyers and try to glean some of that tacit knowledge via “extensive personal contact, regular interaction, and trust.” I touched on tacit knowledge in an early-summer blog post encouraging summer associates to talk with experienced lawyers about their work and to closely observe their nonverbal signals during these conversations.

This advice suggested perhaps the slightest hint of the idea that there might be dissonance in what lawyers say they do and what they actually do. An article by one of my law-professor heroes, Richard Neumann, Jr. explores this concept in depth.  The article is Donald Schön, The Reflective Practitioner, and the Comparative Failures of Legal Education, 6 Clinical L. Rev. 401 (2000). It attacks superficial notions of lawyering and legal education at multiple levels.

What is the difference between what lawyers say they do and what they actually do? The real tacit knowledge is in what they actually do—which they may not be willing to describe or even fully aware of.

This insight is from the work of Donald Schön, a now-deceased professor of architecture at MIT. Schon’s ideas and Neumann’s exploration of them aren’t new, but the insights remain relevant and helpful.

Schön sought a deeper understand of tacit knowledge, questioning its foundations:

[T]acit knowledge is not necessarily accurate knowledge. Because it is tacit, it is also unexamined.

And because it is unexamined, it may be worthy of the term “knowledge” only in sarcastic quote marks:

The tacit ‘knowledge’ of an ineffective professional might be nothing more than superstition—and correspondingly dangerous to clients.

Schön questioned professionals’ capacity to understand and describe their own work. What professionals think they do and what they actually do are often entirely different. Here he used two terms to categorize false and real tacit knowledge. (Neumann, while clearly a fan of Schön’s work, didn’t really like his terminology, and here you may feel a particularly strong urge to close this browser window. But consider plowing on.) Schön’s terms distinguish what a professional says about the work from how the professional actually does the work:

  • A “theory of action” is how a person describes the work they do.
  • A “theory-in-use” is what actually governs the person’s actions.

As a result, we can only learn a person’s true “theory-in-use” by observing their behavior. More broadly, this discrepancy “makes it harder to improve how professionals work.” A lawyer might resist making a change out of the mistaken belief about what she is actually doing. “Because our theory of action seems satisfactory to us, we do not see any reason to change.”

And willingness to change isn’t necessarily sufficient to make a real change. “[E]ven if we can be persuaded to change, we might be satisfied” just by changing our theory of action. This is a change in name only if “we continue what we were doing before because our theory-in-use remains unexamined and controls our actions.”

I’ve thought about this concept with legal writing, and writing generally. It’s much easier to change one’s nominal theory of action, especially if that means adopting new writing software or formats or labels about what one is doing. In an article titled Fighting “Tippism,” Stephen Armstrong and Timothy Terrell wrote about how superficial writing “tips” are no substitute for the real work of learning and using the lessons of rhetoric, logic, and cognitive psychology.

In the realm of listening, the problems equally difficult if not more so because listening is so difficult to observe and measure. One may have a theory of action that they are in fact a great listener and an active listener. They are totally on board with the value of listening.

But their theory-in-use could be quite different. How well someone listens can be described in three major categories, according to Melissa Daimler, Head of Learning and Organizational Development at Twitter, writing for the Harvard Business Review Blog:

Internal listening is focused on your own thoughts, worries, and priorities, even as you pretend you’re focusing on the other person.

Focused listening is being able to focus on the other person, but you’re still not connecting fully to them. The phone may be down and you may be nodding in agreement, but you may not be picking up on the small nuances the person is sharing. 

360 listening.  You’re not only listening to what the person is saying, but how they’re saying it — and, even better, what they’re not saying, like when they get energized about certain topics or when they pause and talk around others.

A lawyer may believe he is a 360 listener, when in fact he is an obstinately internal listener. This mismatch of belief means the lawyer does not feel any need to work on listening because how can you improve upon something already pretty terrific?

And if such a lawyer does read a blog post or attend a training on listening, she might pick up a new term of art for listening, such as “I’m a 360 listener,” while remaining rather poor at it.  This obviously connects to the Dunning-Kruger effect of being so bad at something that you don’t even know you’re bad.

Schön and a collaborator apparently tried to address this difficulty through seminars and training that guided participants to confront the differences between their theories of action and theories-in-use. They sought to help professionals recognize two major approaches to going about professional work:

  • Model I exhibits “highly developed rationality and a commitment to goals and winning.”
  • Model II “develops the largest amount of valid and relevant information and generates the largest number of options from which to choose.”

Model I sounds a lot like a stereotypical lawyer personality. That’s not good news. Model I—also known by Robert Condlin’s term “persuasion mode”—has a lot of problems. Persuasion mode is sometimes useful and beneficial, but as a default personality it has some significant pitfalls, as described in Neumann’s article:

[A] person in persuasion mode tends to act on hidden agendas and strategies; “to minimize self-analysis and to reserve it for private moments when it will not weaken instrumental effectiveness”; and to argue in ways that are subtle but “needlessly stylized and hyperbolic.” Persuasion-mode behavior is profitable in situations where the struggle is for control rather than insight, and where the “self-sealing properties of persuasion mode habits” minimize tentativeness and perplexity. “Persuasion-mode habits predispose lawyers to take evaluative stands automatically” so that they “make statements that, on reflection, they know to be false.” “It causes one to impute rather than explore others’ ends, shut off rather than encourage legitimate objection, . . . and accumulate rather than share decision-making authority.

The other possibility is the learning mode, also known as the inquiring mode. Neumann’s essay on Schön explores how the inquiring mode is more consistent with curiosity, open-ended thinking, and exploration of ideas regardless of consequences. A number of benefits accrue to clients and lawyers, with more meaningful and effective collaboration at the top of the list. The collaboration is better in at least two ways: First, the lawyer does not have to maintain a “professional façade” of being the expert. “The ‘expert’ will want “deference and status in the client’s response to [the] professional persona,” while the reflective practitioner will prefer a ‘sense of freedom and of real connection to the client.’”  At the same time, a client may feel more comfortable with a lawyer in persuading mode because the client can sit back and rely on the assumption the lawyer is the expert and will do everything right. A more reflective lawyer can create a more reflective relationship with the client. In these relationships, lawyer and client “join” in making sense of the case. The client gains “a sense of increased involvement and action.”

With the inquiring mode, lawyer-client collaboration is better in at least two ways: First, the lawyer does not have to maintain a “professional façade” of being the expert. “The ‘expert’ will want “deference and status in the client’s response to [the] professional persona,” while the reflective practitioner will prefer a ‘sense of freedom and of real connection to the client.’” At the same time, a client may feel more comfortable with an “expert” lawyer in persuading mode because the client desires the comfort of passive reliance. A more reflective lawyer can in turn create a more reflective relationship with the client in which lawyer and client “join . . . in making sense of the case.” The client gains “a sense of increased involvement and action.”

Neumann’s review of Schön’s work ends on an extended exploration of how difficult it is to teach any of this in a formal curriculum—especially the curricula of medical and law school as distinct from the arts and architecture. Teaching reflection and modeling it in experiential classes are crucial. One way to start is simply by sharing with law students and lawyers Schön’s essential and upsetting insight that the way we intuitively explain what we do may not be very accurate.

 

 

 

 

 

 

CollaborationFact investigationLegal communicationLegal writingPeople skills

Listening for summer associates

A successful summer-associate experience means doing good work and creating good social impressions. Listening skills can help with both.

The assignment and the work

The most obvious place to talk about listening and work product is in the incredibly important meeting where the senior lawyer communicates the assignment.Here’s a checklist for listening while taking an assignment. One theory of checklists is that they shouldn’t include the obvious things everybody already knows and does. If you read Atul Gawande’s Checklist Manifesto, you will learn that effective checklists should not be overloaded with obvious items no one actually forgets to do. But in case it’s not obvious, let me quote one to-do item (thrice repeated) in The Vault’s advice piece on “Acing Your Law Firm Summer”:

Bring a pad and pen to this meeting. Bring a pad and pen to this meeting. Bring a pad and pen to this meeting. 

The advanced skill is to take notes while still asking good questions and maintaining a conversational tone. And an even more advanced skill is perceiving what isn’t there. Legal writing guru Ross Guberman has suggested that “in this iPhone age, supervisors often forget to relay key information.” Reviewing a checklist before the meeting can help prompt good questions during the meeting to bring out valuable information.

Confirming the assignment in writing after the meeting can prompt the attorney to share further crucial information: “Attorneys are text people, so seeing your write-up might help your supervisor steer you onto the right track before it’s too late.” And this type of confirmation can showcase listening and writing skills as well. But I’ve also heard attorneys express annoyance at receiving e-mail back confirmations of every assignment-related conversation. The more formal and significant the assignment, the more appropriate it is to confirm the facts and assignment in writing.

Listening can play a broader role even before the assigning conference.  It has to do with picking up underlying knowledge and context for doing the job well. The most effective legal work product is effective partly because it is grounded in the lawyer’s understanding of that area of law and how it works in practice. Lawyers with experience in a particular practice area are more effective than beginners at what they do partly because they have “tacit” knowledge—that is, knowledge that is not written down and is difficult to share.

The ABA’s Before the Bar publication highlighted the role of tacit knowledge and why it’s so important to aspiring lawyers:

Your goal should be to gain tacit knowledge in order to build your practical skill set. To do this, attorneys need to transfer their tacit knowledge to you and the most effective way to do this is through extensive personal contact, regular interaction and trust. In other words, tacit knowledge is transferred through practice.

Summer associates cannot be expected to have the tacit knowledge that veteran lawyers in a practice area do. But summer associates who show they can pick up tacit knowledge quickly and apply it in their work are likely to stand out. For example a patent lawyer needs different ways of communicating with engineering clients and generalist judges. That’s maybe not a great example of tacit knowledge because it’s not so difficult to share.

Perhaps a better example is what it’s like to work with clients who don’t necessarily feel a great deal of affection and affinity for the law or lawyers in general. To take this social example a bit further, what is it like to work with clients who have a strong in-group identity? Let’s take doctors or more specifically surgeons, for example. Clients with a strong in-group identity may or not be willing to trust lawyers hovering at the edges of the in-group, and the most effective lawyers are highly perceptive about how to work with such clients. (Highly successful sports and entertainment lawyers come to mind here as well.)

Tacit knowledge about how a lawyer and a law firm go about working with such clients can help not just in a general social sense but with performing the substance of the work. The way a lawyer would communicate with such clients is very different from communicating with a legal writing professor or a senior lawyer. The substance of how to be successful in these settings goes beyond broad statements like “think of your audience” and easily transferable points like “don’t use legal jargon with non-lawyers.” In the ABA article, author Max Rosenthal went on to assert that all practical legal skills are rooted in tacit knowledge—not only writing and communication, but analysis itself.

Listening can help a summer associate begin to access some of this tacit knowledge. Through “shadow” programs and being invited along on a deposition or other legal event, summer associates can  just watch, listen, and learn. As with good law-school externships, these opportunities may be some of the most inclusive and rare opportunities to listen and learn, relatively free as they are of the pressure to bill time.

Tacit knowledge is, by definition, difficult to access directly. But conversations with lawyers in a practice area may be a start. Good conversations before any particular assignment can yield information about how lawyers do their job well in a particular practice area with particular types of clients. Show curiosity. Ask them about their experiences, successes, and challenges in that practice. What do they wish they had known when they started? Listen carefully to their words, and watch their nonverbal communication as they share their experiences. What are they telling with their nonverbal communication, as well as showing with their words? All of this information is valuable toward understanding this person and this person’s experience in this area of law. For good listeners who are curious, every piece of information they collect helps them do their work more effectively.

Social skills

Summer associates need to show that not only can they do the work, but they are also a “good fit” at the firm internally and can be trusted to interact with clients. These concerns mean summer associates should work on all kinds of social skills such as dressing appropriately and monitoring alcohol intake.

Listening helps across the entire spectrum of social skills. Here are just a few examples:

  • Showing curiosity by asking good questions and responding appropriately to the answers to continue the conversation
  • Knowing when to sit back and observe, such as when a senior lawyer is interacting with the client and the summer associate has the good fortune to be there
  • Maintaining focus on the situation even when not playing a direct role
  • Being able to converse informally (such as at a happy hour) by starting a conversation, bringing other people into the conversation, and leaving a conversation
  • Demonstrating recollection of earlier details and bringing them into later conversations appropriately

Evaluating listening

There don’t seem to be any published summer associate evaluation forms, but it is a certainty that they include criteria for effective communication skills. Communication involves four distinct channels: reading, writing, speaking, and listening. Listening may not be mentioned explicitly to the same extent as effective oral and written communication, but it is part of effective communication.

Listening can be subtle and hard to measure. It’s so difficult to say  whether another person is a good listener or a great listener. But when it comes to human perception and evaluation of others, “bad is stronger than good.” That means a hiring committee’s evaluation discussions may focus on problems or concerns, rather than subtle gradations of what went well. Some aspects of poor listening may be hidden—for example, not catching the subtleties of an assignment and therefore writing an acceptable memo that misses an opportunity to add value. (More on adding value below.) But some bad listening is very easy to spot. Looking at one’s smartphone while in the presence of a Very Important Person would be one example of what not to do.

Adding value and building professional identity

Listening can help a summer associate achieve the most nebulous and most important goal of all—“adding value” to the legal work of the firm. It’s a buzzword and maybe even a cliche, but there are ways for summer associates to add value by listening. Observing a deposition could provide an opportunity to watch the witness’s body language and suggest a follow-up question after a break. Shadowing a corporate lawyer could open up conversations about different ways to handle a type of transaction depending on the client’s goals. Asking questions that demonstrate understanding and curiosity about the profession suggests a greater long-term potential for adding value.

And listening can also help the summer associate directly with an more individual goal (one that is also nebulous but also important): building that summer associate’s own professional identity as a lawyer. One definition of professional identity is “the way a lawyer understands his or her role relative to all of the stakeholders in the legal system, including clients, courts, opposing parties and counsel, the firm, and even the legal system itself (or society as a whole).” (This is from Scott Fruehwald’s book Developing Your Professional Identity: Creating Your Inner Lawyer, quoting an article by Martin Katz on teaching professional identity in law schools.)

Certainly law school is a place where professional identity starts to form; taking those skills out into the almost-real-world of being a summer associate should be an even more meaningful opportunity to do so. However the summer turns out, it will have been some kind of step on the way towards a more fully formed professional identity.

This post was updated from its original form to include the ABA article recommending practical experience as the method for law students to acquire tacit knowledge.

For more reading on listening and summer associates: Listening as a hard skill and a soft skill

For more on checklists and legal writing: The Legal Writer’s Checklist Manifesto

AdvocacyFact investigationLegal skillsLegal writingLitigation

Do you know it when you hear it?

 

When taking a deposition, can you immediately recognize the testimony you want to quote in a later dispositive motion? Do the words jump out at you like a “nugget” in a “treasure hunt”?

Legal writing and nonfiction writing have a lot in common, as a recent New Yorker article by John McPhee suggested. I studied his work in journalism school and continue to follow it more as a hobby than anything strictly related to lawyering. But McPhee’s article on selecting material is very much relevant to what lawyers do in taking depositions and conducting witness examinations to generate powerful, memorable words later used in writing such as motions and briefs.

The article is Omission: Choosing What to Leave Out (September 14, 2015). This post explores his essay and draws some points of contrast with legal writing, before arriving at the real connection to listening, which is the art of the quotation. McPhee is partly a luxury for the novelists disguised as lawyers among us, but here’s the pragmatic sell:

Lawyers who can elicit, recognize, remember, and effectively frame quotations in writing have an advantage in their writing and advocacy just as creative nonfiction writers do. In other words, being an effective listener leads to more persuasive writing and lawyering.

McPhee’s broad point in Omission was to explore the experience and process of cutting his own work and having it cut. From the beginning to the end, “[w]riting is selection”:

Just to start a piece of writing you have to choose one word and only one from more than a million in the language. Now keep going. What is your next word? Your next sentence, paragraph, section, chapter?

And then when the draft is complete, it may need to be cut in order to fit on a magazine page, or just because readers may not persevere through 40,000 words about a topic such as oranges. It’s not surprising that he wrote 40,000 words on oranges because, according to McPhee, the decision to leave something in should be based on whether it is “interesting to you.”

And by “you,” he means the “you” doing the writing, not the hypothetical “you” doing the reading:

At base you have only one criterion: If something interests you, it goes in—if not, it stays out. That’s a crude way to assess things, but it’s all you’ve got. Forget market research. Never market-research your writing. Write on subjects in which you have enough interest on your own to see you through all the stops, starts, hesitations, and other impediments along the way.

This writer-centric view is very different from client-driven legal writing such as trial and appellate advocacy. If you as a lawyer writing on behalf of a client and putting something in because it interests you personally, you may be on the wrong track. In some cases, I’ve seen writers insert comments in their memos and briefs such as “Interestingly, . . . .”

These types of comments are rarely effective. And in that sense, the tenets of good legal writing and good nonfiction writing come back into accord, as McPhee instructs: “If you see yourself prancing around between subject and reader, get lost.”

After exploring these thoughts on how to select material, McPhee narrowed the focus to selecting quotations. He received the following inquiry from a reader:

“I was curious—do you know right away when you hear a quote you want to include in the story, or do you usually mine for it through your notes?”

He responded in part as follows:

Dear Minami—Across my years as a writer and a writing teacher, I have been asked myriad questions about the reporting and compositional process but not before now this basic one of yours. And the answer comes forth without a moment’s contemplation: I know right away when I hear a quote I’ll want to include in the story.

McPhee is a master of weaving themes throughout his writing. (For anyone who likes thinking about themes and structures in writing—such as modifications to the “IRAC” format taught and derided in legal writing—read McPhee’s incredible essay, Structure.)

In the essay on omission, the theme comes back again and again:

Writing is selection.

He doesn’t explicitly mention listening very much, but it runs throughout.

McPhee takes copious notes so he can have lots to choose from later. (In a separate article, Elicitation, he goes into more depth about creating conversational settings for interviews, and how he uses a tape recorder unobtrusively when possible.)

He doesn’t need good notes to recognize a “nugget” in the “treasure hunt” immediately when he hears it.

And he brings affection to his work; about one subject, he says, “I loved just listening to him talk.” The joy McPhee described is perhaps not exactly what a lawyer experiences sitting at the deposition table for hours on end—until that moment of hearing a perfect quote that will ice the dispositive motion. (Forget about the Bluebook;

Forget about the Bluebook; block-quote it for emphasis even if it’s only one word.

That’s a type of joy unto itself.

 

 

 

 

 

Emotional intelligenceLegal communicationLegal writing

Lucky listening object?

This summer I had the pleasure of reading Between You & Me: Confessions of a Comma Queen, by a longtime copy editor at the New Yorker, Mary Norris. This book is a pleasure, something you can tell just by the epigram:

IMG_3693

Later on, Norris expounds at length upon the editor’s pencil—not in a Platonic sense, but in the sense of the actual pencils and pencil sharpeners she uses for her tasks. Her favorite is the Blackwing, a premium and pedigreed pencil that promises “half the pressure, twice the speed.” (The smooth writing experience will appeal to certain pen fanatics as well.)

IMG_4590

On Norris’s recommendation, I ordered a box of Blackwings, specifically the Palomino Blackwing 602 model. They really are pretty awesome, from the silky flow onto the paper to what Norris describes as the chiclet-shaped eraser. Her loving and detailed description of trial and error before finding the Blackwings also imbued them with a special sense of purpose. As a legal writing professor, I began to think about whether law students would benefit from having some sort of totemic editor’s tool. This does seem appropriate, since lawyers should be editors as much as writers.

And as with many of may daily activities (see Orangetheory post from last week), I wondered whether this idea of a special writer’s tool could apply to the complementary skill of listening. What could lawyers and legal professionals use as an expert tool of the trade, giving their listening a special sense of purpose? The ideal tool would be subjectively powerful for the individual using it and carry some historical or contextual significance as well to help the individual perform the task in the aspirational spirit of the profession. (The Blackwing website promotes a myth like this through the pencil’s history: discontinued in the 1990s and then brought back in the 2010 after some were paying up to $40 per pencil for remaining stock.)

But listening is a receptive communication channel, in contrast to writing and speaking. What does the idea of a special tool even mean for receiving information rather than making it?

The first thing that came to mind is the art of taking notes. It’s not listening exactly, but it’s an artifact of listening. When I asked academic-support expert Moji Olaniyan how she works with students on their listening, she said the first thing she looks at is their notes, and they way they take notes. (More specifically, Moji Olaniyan is Dean Olaniyan, the Academic Dean for Academic Enhancement at the University of Wisconsin.)

One revered method for taking notes is the Cornell method, described by Lisa Needham in an updated Lawyerist post just this week. The note-taking method itself does not demand any particular purchase since any paper can be used with a few lines drawn to create a left margin and summary at the bottom. However, the Levenger notebooks are one way to spend on this method if desired. For practicing lawyers, of course note-taking does not go away after law school, although it changes form. Lisa’s post offered some interesting glimpses into what note-taking looks like in law practice.

Note-taking can also go multimedia such as with a Livescribe pen that records while you write. This pen may not make listening feel sacred and special the same way the Blackwing works for Mary Norris. Rather I suspect it would make one feel a tiny bit like an engineer (or spy?), which could be good in a different way—assuming it’s legal and culturally acceptable to record audio wherever you may use it.

But note-taking is just a proxy for listening, and only in situations where note-taking is socially acceptable.

What about the listening act itself—the experience of taking in the information, and the speaker’s perception of being listened to? In social situations, people may grasp a glass of wine or a Coke, a reminder in the hand of social cues to follow. Grasping a warm cup (including but not limited to a cup of coffee) may help with social interactions, scientific research has suggested.

On the other hand, have you ever been in a conversation where it seems to be going pretty well and then you see the other person’s eyes dart sideways, as if looking down at a phone—even if they’re not actually doing so? They may be drawn to another “talismanic,” “fetishistic” and “fanatical” object: the “amulet” of the smartphone.

Client developmentEmotional intelligenceLaw practiceLegal communicationLegal writing

New proof about “sounding smart”

Every time a lawyer communications, that lawyer must choose not only what to say but how to say it—in person, phone, e-mail, or something else.

Speaking and listening obviously take longer and may seem inefficient. Writing (such as e-mail) can reach a group of people instantly and allow them to access the information at a convenient time, also creating a record all parties can use and refer to later.

Courtesy Flickr/Horia Varlan/CC by 2.0

Courtesy Flickr/Horia Varlan/CC by 2.0

But e-mail just isn’t as accurate at conveying meaning.* Anyone who has had an e-mail misunderstanding has experienced what the academic research shows:

Because of the paralinguistic cues in voice, such as intonation, cadence, and amplitude, observers who hear communicators guess their actual thoughts and feelings more accurately than observers who read the exact same words in text.

This is just the background in a new study conducted by Professor Juliana Schroeder and Nicholas Epley at the Booth School of Business (University of Chicago) (sub req’d for link). There’s actually another surprising disadvantage of writing, compared with speaking the same material to a listener.

In that study, MBA students prepared pitches on why they should be hired, and then delivered them either orally or in writing. The results were pronounced:

[E]valuators rated a candidate as more competent, thoughtful, and intelligent when they heard a pitch rather than read it and, as a result, had a more favorable impression of the candidate and were more interested in hiring the candidate.

Why is this? It has to do with cues provided by the voice, and heard by the listener—cues that are lacking in writing. The study summed up the effect:

The words that come out of a person’s mouth convey the presence of a thoughtful mind more clearly than the words typed by a person’s hands—even when those words are identical. Across five experiments, evaluators who listened to job pitches were consistently more interested in hiring the candidates than were evaluators who read identical pitches. A person’s voice communicates not only the content of his or her thinking, but also the humanlike capacity for thinking.

The effect persisted whether the written material was prepared for purposes of reading or speaking. It persisted in one form or another for “evaluators” drawn from a general audience at a Chicago museum as well as from recruiters at Fortune 500 companies. The study also asked trained actors to deliver the pitches in another sub-set of the study to glean whether professional voice skills were the deciding factor. They weren’t.

In an article on the study—”The Mouth Is Mightier than the Pen”—the New York Times pointed out that study authors did not control for the quality of the writing itself. Study author Dr. Epley told the Times he assumed the MBA students were “better-than-average” writers, given that they were enrolled at a top business school. But the study’s findings turned out to be greatly surprising to the students themselves: responses to a survey question showed they did not expect their spoken pitches to be so much more powerful in conveying intellect.

The study does not indicate it would be “impossible for a talented writer to overcome the limitations of text alone.” Rather, the study participants did not predict or expect that voice would provide such an advantage, and thus in their written pitches did not spontaneously try to overcome any deficit from that communication medium.

The study has a number of implications, for lawyers and anyone who conducts business in a variety of media—or anyone who cares about making an impression about their intellect:

[T]ext-based communications may make individuals sound less intelligent and employable than when the same information is communicated orally. The findings imply that old-fashioned phone conversations or in-person visits may be more effective when trying to impress a prospective employer or, perhaps, close a deal.

* Among e-mail’s other well-documented disadvantages such as creating a sort of tyranny of distraction.

Client developmentClinical legal educationCollaborationEmotional intelligenceEthics

Teaching Success > Analyzing Failure

Why blog about listening? It drew me in because it’s different than legal writing—which I honestly love, and love to teach, but sometimes tire of, with its skirmishes in broader linguistic debates about two spaces after a period, commas outside quotation marks, and the indefinite singular pronoun, as well as the temptation to go negative.

Courtesy Flickr/Martin Fisch/CC BY-SA 2.0

Courtesy Flickr/Martin Fisch/CC BY-SA 2.0

Listening is among the softest of the soft skills, so soft it’s hard to perceive and even harder to measure. It’s not talked about as much as writing or speaking—or even the other “receptive” communication channel, reading—but I believe it has a huge impact on every aspect of law students’ and lawyers’ effectiveness, both real and perceived. If a law student gets every relevant fact from an externship client including important gaps in the client’s knowledge and then produces excellent notes for the supervising attorney, but the client does not feel heard, is that a successful interaction? How can law students and lawyers enhance their listening skills?

I hoped to mainly focus the blog on constructive ideas, as opposed to the “what not to do” method so prevalent in some conversations about legal writing. Yet soon as I launched the blog, the most common reaction was to parade out the listening failures:

“Your blog is called Listen Like a Lawyer? Oh, so you mean poorly and with preconceived ideas?”

Thus the temptation. It can be fun to write about bad examples of anything, whether listening or writing or any other skill. I had a little too much fun writing a Halloween post about “scary” listening here. And here’s a more serious post focusing on terrible listening. The attraction—and impact—of talking about failure is based on a larger disturbing reality:

[N]egative information, experiences, and people have far deeper impacts than positive ones.

This is from an article in the Harvard Business Review explaining Roy Baumeister’s paper “Bad Is Stronger than Good.”

Prevention is better than failure

The temptation to talk about any skill in terms of failure came immediately to mind when I read Ken Grady’s latest post at the Seyfarth Shaw Lean Consulting blog SeytLines, “On Teaching Lawyers to Succeed Rather than Fail.” His post focuses on critiquing the case method of law school, in which almost every fact pattern by definition represents a failure of the parties and lawyers to find a mutually beneficial solution and settle the case.

His critique is not unreasonable: why is that a good way to teach lawyers to solve problems? Actually Grady is less interested even in solving problems than in anticipating and preventing them. And he doesn’t think the case method is very good at this at all:

“[T]aken to an extreme and when used as the primary method of teaching students, [the case method] becomes a vicious circle keeping us trapped in a cycle of failure.”

Re-thinking the model to teach law students how to proactively work with clients to prevent legal problems turns out to be very difficult. Prevention is a lot harder to see than failure:

“Much of the best lawyering ever done was not recorded in case books or articles. It went unrecorded because that work prevented failure from happening. The lawyers who provided those services kept their clients out of trouble, kept costs down, and avoided burdens on society.”

Role-playing real situations is one way to get at preventative lawyering, as in the following example from Grady:

“A general counsel is faced with a new business model. She investigates the obvious legal risks of the model and does not find anything at odds with existing law. As far as she can tell the proposed business model is perfectly legal. But still, something does not seem right to her. She pushes further into the model. As she studies it, she realizes how it may conflict with evolving concepts in the law and societal trends. Today the model is perfectly legal, but in three to five years, it most likely will be problematic. Our general counsel could do nothing and leave any problem to the future. She could follow the maxim of make money today and let tomorrow bring whatever it may. Or, she could look for something to mitigate the risk.”

Problem-solving and leadership

Grady’s post “On Teaching Lawyers to Succeed Rather than Fail” reminds me a lot of Emory Law Professor Dorothy Brown’s recent article Law School Without Borders (PDF). In the article, she outlines an alternative approach to teaching law. She gives a case study problem solving and problem prevention for a hypothetical client who happens to be a “nationally known Southern-style celebrity chef” sued for race and sex discrimination. In the article, Brown walks through the possibilities for achieving success through proactive, interdisciplinary, collaborative lawyering. More broadly, she suggests what law schools can and should do to broaden their focus:

“A law school that incorporates more than just teaching students how to think like lawyers, but how to also solve problems and take a leadership role will graduate students better equipped to add value to their firms and clients on the first day. Emotional intelligence should not be underestimated. By emotional intelligence, I mean empathy, exercising good judgment, maturity, wisdom, common sense, and last, but not least, the ability to have difficult conversations successfully.”

Hear, Hear! to the idea of teaching leadership, emotional intelligence, and difficult conversations. The “law school without borders” Professor Brown describes is consistent with Ken Grady’s interest in teaching problem prevention through anticipatory lawyering. Their ideas both fit within and challenge the ongoing conversation about experiential learning in legal education, such as here.

Better listening by analyzing listening successes

This is a huge topic, but what we can do here is to bring the focus back to listening. From time to time, we can turn away from “10 Ways to Be Awful at Listening.” We can instead talk about “10 Ways Great Listening Helped Lawyers Serve Their Clients By Understanding and Avoiding Potential Disputes.” Here are some questions:

  • How have you seen lawyers use listening to successfully prevent and solve problems?
  • What did they do, specifically, that showed their listening?
  • How can proactive, preventative, powerful listening be a tool for lawyering success?
  • What are some ways to teach that kind of listening?
Legal skillsLegal writingWriting

Listening’s influence on writing

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

  • Listening
  • Speaking
  • Reading
  • Writing

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

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

Listening at the outset

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

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

Listening to feedback

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

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

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

“Listening” while writing?

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

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

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

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

***

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

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

Law schoolLegal communicationLegal skillsLegal writingWriting

Listenability and readability

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

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

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

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

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

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

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

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

Effective listening can help with effective writing too.

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

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

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

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

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