Category: Litigation

Client relationshipsCollaborationLegal communicationLitigationPeople skills

Repeat listening

This Thursday, I will be pleased to moderate a panel on productive communication between insurance adjusters and insurance defense counsel. Attorney Jeremy Richter of Webster Henry and claims adjuster Nikki DeWitt of Carolina Casualty Insurance Company will be the panelists at the event sponsored by the CLM’s Alabama chapter.

Our discussion will focus on how attorneys and claims adjusters can use listening and other communication skills to work together efficiently and effectively. Many of these assignments involve repeat players on both the adjuster and attorney side. What I’m most interested in hearing from Nikki and Jeremy is steps they recommend for establishing solid communication early, and maintaining effective communication in later cases. Effective listening is a major part of both goals, and Jeremy and Nikki will share their observations and some examples of how they use listening skills. This conversation will be customized to the claims adjuster-attorney relationship, but I expect some broadly applicable points as well.

Registration is open to CLM members and fellows here. I will follow up here on the blog after the panel.

 

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Beyond formal rules of evidence

Last year the Wall Street Journal wrote about problems with sleeping jurors. Brooklyn law professor I. Bennett Capers’ new article Evidence Without Rules, forthcoming in the Notre Dame Law Review, points out a much more pervasive issue: all the information jurors take in when they are awake.

The rules of evidence strictly limit what jurors can consider. They are have been “understood, and continue to be understood, as all-seeing, all-encompassing gatekeepers, checking all of the information juries may hear or see for relevance and trustworthiness.” Capers shows this view to be inaccurate and incomplete:

The assumption is that the rules are all-encompassing, unbounded. But the truth is far different. To be sure, the Rules of Evidence place limits on some of the information jurors hear and see, such as witness testimony and exhibits, the type of information that is formally announced and introduced as evidence by lawyers. Other evidence, however, passes by evidentiary gatekeepers practically unseen and unnoticed. Jurors use it to decide who was right and who was wrong; who committed a crime and who did not.

It is this other evidence that “breeze[s] unchecked” past the gatekeeping function of the evidentiary rules. And, Capers argues, “[i]f the goal of evidence law is ‘that truth may be ascertained and proceedings justly determined,’ then that objective is frustrated when outputs turn on improper and unchecked inputs.”

He gives three major examples pertaining to all the players in the courtroom—parties, witnesses, attorneys, and others:

  1. Their dress
  2. Their demeanor
  3. Their race

First, dress—for example, glasses, which can be used for a “nerd defense” but may also make white-collar defendants look more guilty. As to the role of glasses, the article left me actually speechless with a jury consultant’s advice: “savvy lawyers should spray a defendant’s glasses with PAM cooking spray so that the jury cannot see the person’s eyes, at least when the lawyer fears the defendant might come across as ‘shifty-eyed.’”

Second, demeanor—Capers points out that the lawyer can use nonverbal behavior to supplement or tear down testimony. It was this aspect of the paper that seemed most connected to the topics here on this blog. A lawyer’s demeanor can serve as a kind of “performative listening” that doesn’t just elicit testimony but gives some kind of statement in its own right:

Consider the lawyer who drums her fingers on the table while a witness testifies on the stand, or rolls her eyes or raises a skeptical eyebrow. Or the lawyer who quietly nods along at a certain point in a witness’s testimony. . . . They are in effect vouching for witnesses, or in the case of opposing witnesses, implying a witness is unworthy of belief. They are offering the equivalent of opinion testimony without themselves swearing an oath or taking the stand.

The way the lawyers sit aligned with their client or put a protective arm around the client is itself a form of opinion evidence, Capers argues—unacknowledged evidence that would violate Rule 404(a) if it were considered “evidence” in the first place.

Third, race—which connects with demeanor evidence but is of course much broader. As to demeanor, which has proven crucial in death-penalty juries’ deliberations, the impact of race makes jurors worse at reading faces: “Several studies have found that how jurors interpret facial expressions depends on the race of the juror and the race of the defendant; not only do we have trouble with cross-racial identification; we have trouble with cross-racial identifications of remorse.”

The impact of race also makes jurors worse at remembering the facts fairly:

[In one study,] participants invented aggressiveness when the actor was black, [but] actually failed to remember evidence of aggressiveness when the actor was white. In short, it is not only in cases involving minority defendants where race matters. Race also matters in cases involving white defendants, whom jurors are more likely to view as presumptively innocent, and cases involving white witnesses whom jurors deem presumptively credible.

Beyond these three factors explored in the articles, there is, of course, sexism such as jurors’ bias toward male experts as more authoritative, bias toward people with families, bias against the use of an interpreter, and male bias against overweight women. “Outsider accents” are viewed as less credible, whereas neutral and especially British accents gain extra credibility.

The question Capers struggles with is what to do about all of this. Given the almost impossible bar of overturning a jury verdict, even on evidentiary issues formally recognized as evidence, the basic effect is “What happens in the jury room stays in the jury room.”

And he points out that existing instructions may exacerbate the problem. Telling jurors to decide based on what they “saw and heard in court” may “giv[e] them tacit approval to consider anything they hear or see—including the dress of witnesses, or the presence of supporting family members, or the defendant’s demeanor even if he does not testify—so long as they do not consider as evidence anything the court explicitly prohibited, such as the questions of lawyers.”

Capers goes on to suggest a stronger admonitory instruction, phrased in concrete, plain language. He also suggests providing jurors with an evidentiary checklist of the witnesses and the documents. Capers’ suggestion here fits well within insights from cognitive science. For example, Daniel Kahnemann coined the phrase “WYSIATI”: What You See Is All There Is. Under WYSIATI, people rely heavily on affirmative information in front of them. Thus, an affirmative list of what the evidence actually is could direct attention toward the evidence actually presented and away from the natural tendency to fill gaps using other cognitive shortcuts.

Capers’ most radical suggestion is to redefine the scope of evidence itself. Under his proposed definition, evidence would include “anything that may come to a juror’s attention and factor into a juror’s deliberation.” The implications of such a definition seem vague at times. For example, he says that a rape victim’s clothing might trigger a 403 issue with the risk of unfair prejudice. But there is an aspect of personal autonomy in how people dress for court; if clothing could be prejudicial enough to trigger 403 then could it somehow come within the court’s discretion to order someone to, say, put on a sweater or take off a sweater? This reminded me of the incident from a couple of years ago where a weather reporter was asked to cover up, on air. And what should a judge do with flamboyant courtroom observers in high-profile cases, for example the Tex McIver trial that just wrapped up in Atlanta:

Capers answers most such questions by relying on detailed jury instructions. Footnote 153 in the article cites scholarship that instructions are not futile and do make a difference, especially when repeated and explained clearly.

I appreciated the realism at the end of his article, acknowledging a possible counter-argument: Why does any of this matter? Why shouldn’t jurors consider all that stuff, as they always have? Drawing on Critical Race Theory and his own professional and personal experiences, Capers out that dress, demeanor, race, and all those other factors are not neutral:

Who benefits from the status quo when we pretend dress does not matter, or demeanor does not matter, or the presence of family members does not matter, or language ability or up-speak or race or gender does not matter? Who benefits? And who does not?

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“May it please the Court…”

It’s that time of year when 1Ls start preparing for their first oral argument. In a class on how to prepare, I’ll be sure to share this tweet from experienced SCOTUS advocate Bob Loeb of Orrick:

As the card shows, even expert advocates benefit from a sort of security blanket in a high-pressure situation. And precisely because a SCOTUS argument is so important, holding the card gives the advocates a small bit of extra mental bandwidth. They can reallocate this bandwidth to the actual substance of the argument. Of course, experienced SCOTUS advocates do not really need notes for the opening moments of their arguments. They probably never look at the card. But just having the card can provide some piece of mind.

Beginning advocates also need notes, partly to avoid the possibility of going blank.  (This happened to me in my 2L trial advocacy class and it was a lot like this, but scarier.) Beginners are more likely to cling to their notes and read them even when they don’t need to. But ideally, the notes serve a similar purpose to the Supreme Court card. Having them as a backup can reassure the advocate, freeing up mental bandwidth to think more about substance, and maybe even listen more intently to the questions.

There is one difference in the SCOTUS card and cards that 1Ls might make for themselves—a 1L’s creation does not double as a library card:

Question for readers: How do you make sure your notes are a help, not a hindrance, in public speaking—oral argument or any other formal setting?

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New book: Litigation in Practice by Judge Curtis E. A. Karnow

What does a veteran trial judge have to say about . . . everything trial related? On my summer reading list was Litigation in Practice by Judge Curtis E. A. Karnow of the San Francisco Superior Court. It has some of the obvious—be nice to court staff; how to introduce documents into evidence—but also delves deeper into complex litigation, statistical evidence, expert witnesses, and the strategy of timing settlement.

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The book doesn’t directly address listening at trial. But it indirectly touches on listening by criticizing lawyers who interrupt the witness or use “body language such as a raised hand.” Judge Karnow advises lawyers to ask the judge for help directing the witness to answer. He points out that “[y]our questions, too, might be part of the problem, in inviting a meandering, narrative response.” And that leads to my favorite section of the book: “Bad Questions.”

I thought the section on bad questions would be good for this blog because I know I’ve heard many of these questions used repeatedly in depositions and at trial. In fact, one of the questions on Judge Karnow’s list was described to me by a senior trial lawyer as his favorite question.

So I’m interested in blog readers’ reactions to whether they agree these are bad questions. or perhaps just in California where Judge Karnow sits. What are other bad questions you’ve heard lawyers try?

“Is it possible that . . . .” Unless the matter is a logical impossibility (is it possible that 2+2=8?) or a factual impossibility (is it possible you saw a unicorn?) the answer to this question is always “yes.” Anything is possible. Accordingly the question is pointless . . .

“Didn’t you testify that . . . .” This is often a squabble about wording. I assume the jury has been paying attention, and testimony on what a witness has testified about poses the risk of a dangerous infinite regress. Find another way to impeach. . . .

“You heard witness X say . . . (or, “Assume witness X said . . . .) . . . are you calling X a liar?” This is either rhetorical flourish, argument to the jury, calls for speculation, or all of the above.

“Would you be surprised to know . . . .” or “Would it surprise you to learn that . . . .” Nobody cares if the witness is surprisable or not. The question obviously is designed to get a fact in front of the jury whose source is the lawyer, not the witness.”

“Is it fair to say that . . . .” What would it mean if the answer were yes? Or no? Fair to whom, exactly? . . .

Judge Karnow also says that “[a]ny question longer than fifteen words” is a bad question.

For cross examination, he agrees with the “common wisdom” of asking short, focused questions that avoid double negatives. His introduction to the whole section on bad questions serves as a conclusion here: “While most of these are ultimately harmless, they confuse the issues and are a waste of time.”

My question to readers is: Do you agree with Judge Karnow that these are bad questions at trial? Have you used these questions with success? Do you have ideas for better questions that do work across contexts? 

 

 

 

 

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Deliberate practice and lawyering skills

This past weekend, the Legal Writing Institute hosted its second Biennial Moot Court Conference at John Marshall Law School in Chicago. Several of the talks touched on listening-related themes. Kent Streseman of the Chicago-Kent College of Law explored the concept of “deliberate practice” for moot court competitors. His summary of the tenets of deliberate practice could be useful for anyone who wants to improve their mental dexterity and ability to think on their feet. 

I once heard Rutgers Law professor Ruth Anne Robbins refer to moot court with an analogy to “muscle memory.” In sports, building up muscle memory can be a good thing—or a bad thing. If you learn how to swim the wrong way and then repeat the mistake over and over, she said, you won’t become a better swimmer no matter how much you practice. (Likewise for lawyers preparing presentations and arguments, creating wordy PowerPoint slides and then silently reading them to yourself may not be the path to great public speaking.)

In his Chicago talk, Streseman made a related point about sub-optimal practice: Even practicing correctly but in the standard, same way over and over is not going to produce results, especially if it’s ill-informed to begin with. Repetitive practice doesn’t help a learner progress beyond a certain fixed point, and in fact, “skills tend to regress.” 

The “gold standard” of preparation is “deliberate practice,” a concept from Anders Ericsson’s work summarized for a popular audience in Ericsson’s Peak: Secrets from the New Science of Expertise. The purpose of deliberate practice is to yield expert performance:

The hallmark of expert performance is the ability to see patterns in a collection of things that would seem random or confusing to people with less well-developed mental representations.

To build up these mental representations, you need deliberate practice. In his talk Streseman outlined some of the conditions of deliberate practice:

  • The practices must be challenging, with the learner giving their full attention to a task demanded beyond the edge of their comfort zone.
  • The feedback needs to be informed by experts’ accomplishments and understanding of what they themselves do to excel.
  • The feedback must be followed by the opportunity to modify the performance in response, and to recover and reflect on the practice.

These types of focused practices lead to more effective mental representations of the argument in the competitor/advocate’s own mind. And having those effective mental representations mean the competitors can react more quickly to questions and make better decisions on what to say next and how.

The closest connection to listening seemed to be the crucial fact that deliberate practice requires the learner’s full attention. Moreover, the learner has to actually listen and adjust to the feedback provided. Speaking and speaking and speaking again without attention to feedback may be practice, but it’s not deliberate. You can do that in front of a mirror or your dog, and we all know sometimes that’s what a person needs to initially prepare. As beginners approach a task, they may need some repetitive practice with no feedback to get into their comfort zone. Once there, they can then start to push beyond that zone.

But rehearsing to a dog is too comfortable. It’s not deliberate practice, as the dog’s feedback is not informed by experts’ accomplishments and methods of excelling. My dog has been a lawyer’s dog most of his life, spanning three owners with a variety of practice experience both civil and criminal. All three of these lawyers were moot court types. But the dog still can’t coach moot court effectively.

Thanks to Kent Streseman for his talk on deliberate practice and moot court, and to John Marshall Law School and the Legal Writing Institute for hosting the conference.  I look forward to reading Peak and sharing any additional insights from delving into it.  I also hope to share more posts from the conference with additional connections to listening. Until then, you can access tweets from me and others at #LWIMootCourt.

 

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Judge like a judge, please

 

The Georgia Supreme Court recently held arguments on site at the law school where I teach. This was an excellent service for legal education. In class discussion afterwards, my students truly could not contain their enthusiasm for what they observed.

All of the advocates brought different strengths to the podium. One stood out for something he did when any of the justices asked a question:

He paused.

He stood very still throughout his argument and maintained socially appropriate eye contact. When asked a question, he took a moment. During this moment, he did not look down at his notes or up at the sky or left or right. Throughout the pause, his body language was calm and consistent with the rest of the argument.

And—during these pauses—here is something else that stood out:

None of the other justices interrupted the advocate.

They held whatever questions they may have had as the advocate paused, considered, and then responded to their colleague on the bench’s question.

After the argument, I had the opportunity to speak with a few of the justices over lunch. I commented generally about how it’s good for law students to see that they don’t have to race to answer the question. It’s okay to pause and think.

To my delight, one justice said he noticed that too. He said that if he’d had the chance to address the audience after the arguments, that would have been the key idea he emphasized as a teaching point.

And that leads to my plea to moot court judges.

Please let the competitors pause.

Pausing to think is not a weakness. It’s a strength.

It is possible and pretty easy to grade an oral argument based on whether the advocates answer quickly without pausing. This is, frankly, an easier grading criteria than whether they give a good answer.

It’s also possible and pretty easy to interrupt when someone does pause and ask them another question. Then you can also grade their argument on whether they remember and answer two questions at once. That’s also an easier grading criteria than whether they give a good answer.

But if the goal is to help law students become effective advocates, instant responses are not the right grading criteria.

Don’t deduct points for pausing. Add points for pausing and giving thoughtful answers.

The corollary practice is this: when a competitor does pause, don’t interrupt to and add a question. That’s borderline disrespectful to your colleague on the bench who asked the first question and presumably wants to hear the answer.

Moot court judges may meet each other for the first time when they assemble to judge a competition round. But they should still model the collegiality and respect that is apparent on the bench. If a moot court judge asks a question, assume it’s important to that judge to hear the answer.

The result of allowing competitors to pause is this:  Competitors’ answers will be better. The judges’ evaluation will be more accurate on the substance of the response. Speed and lack of hesitation are not an accurate proxy for substantive effectiveness—even in a competitive oral argument setting, and even by 2L and 3L students who’ve tried out and been selected to compete in moot court.

Most of all and beyond the four corners of any score sheet, competitors allowed to pause and think will become better lawyers. They will become the type of lawyer that one day could receive a compliment by a state Supreme Court Justice, for pausing and thinking.

For more information about effective—and ineffective—moot court judging, see Barbara Kritchevsky, Judging:  The Missing Piece of the Moot Court Puzzle, 37 U. Mem. L. Rev. 45 (2006) (available on Lexis and Westlaw).

Also see the Legal Writing Institute’s Model Oral Argument Judging Guidelines.

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Future trial lawyers, take heart

Listen Like a Lawyer will be delving into communication and writing in the next few posts. One reason this blog is generally dedicated to listening is that there are already many excellent legal-writing blogs available for the legal community. (For example: Forma Legalis, Lady Legal Writer, Law Prose, Legible,  and Ziff Blog, just to cite a few.) The writing-related posts here will connect to broad communication themes such as voice, empathy, and the relationship between senior and junior lawyers emerging from a lot of writing and talking as well as reading and listening.

Law professor Philip N. Meyer once did an unusual thing: he spent thirteen weeks observing a federal jury trial on a daily basis. Day after day throughout an entire summer, Meyer sat as a watcher and listener, taking in the spectacle of the trial and everything it entailed—from the painful moments to the surprisingly lighthearted. Leaving court late at night, he spied the lead defense lawyer sitting alone in a car in a remote parking lot with the windows rolled up, practicing his closing argument. This experience is just one of many inspirations for his book Storytelling for Lawyers (Oxford 2014).

Storytelling for Lawyers has neither a chapter on listening nor an index entry on listening. The book is about talking and writing—in other words, producing—narratives, much more than listening as such.  But Meyer mentions listening on page 2, talking about his work as a trial lawyer:

I learned to watch and listen to how my audience listened to me, and I would respond to their concerns, reshaping my stories to fit the shape of their imagining.

The book is about crafting stories that will resonate with audiences, whether at trial or in motions practice. So I recommend it.

But now let me get to the point of this post and why I titled it “Future trial lawyers, take heart.” Meyer teaches a variety of classes including doctrinal classes in criminal law and torts. In his chapter on voice and style, he begins with a reflection on what it’s like to grade law-school examinations:

As I grade these examinations, as best I can articulate it, the singular difference between the mediocre examination answers (C and below) and the middling to good examination answers (B-range grade) is primarily in the “substance”—whether students can identify the relevant issues and accurately articulate the relevant legal rules necessary to analyze the problem.

The distinction between the B exams and the A exams is, however, primarily in the “voice” and “style” of presentation. Voice and style, however, mean something much different in the context of law school examination taking than in the artful trial and appellate narratives that litigation attorneys construct in a factually far more complex and indeterminate world. (This, I think, speaks to why excellent litigation attorneys were often poor law school test takers.)

Meyer goes on to explain that the voice and style of top law school examinations “clamp[] down” on the facts, use clean organization, and employ the King’s English.  The student’s voice must be neutral and must not call attention to itself. “A” exams certainly don’t use colloquialism or humor. And they don’t explore the story embedded within the exam hypothetical in any depth. Meyer quotes a former student describing the events in an exam as “floating factoids.”

This is just one professor’s reflection on his experience grading exams, and he prefaces all of this by saying he grades holistically rather than with a detailed objective checklist. Still, it’s refreshingly transparent and I think every law student should read this—especially those just receiving their first round of law-school grades.

Law students who want to get into the courtroom and try cases may be disappointed that the skills distinguishing great trial lawyers maybe aren’t really tested in this (very popular and prevalent) type of law-school exam. That disconnect is the subject of discussion, critique, and reform, and more discussion, critique, and reform. The positive side here is that Meyer’s reflection invites law students to understand their grades as only loosely related (if there is much of any relationship) to how they might expect to perform in court.

Meyer’s reflection on the emasculated role of facts in many law school exams reminded me of an attorney’s recent #PracticeTuesday tweet. Bryan Gividen was responding to a call to bust law students’ myths of what it means to be a lawyer:

 

Working with the facts, crafting the story, developing a voice, testing whether the voice and the story resonate with an audience, all of these tasks are deeply connected with what it means to be a trial lawyer. The best appellate lawyers experiment with all of these things as well, but there are limits: the idea of “clamping down on the facts” by rigorously adhering to the record, and controlling one’s voice for the genre of the appellate brief and the audience of the appellate panel. Gividen draws this line when he identifies competitive appellate work as an exception to “practicing the facts.”

Any law student or lawyer who wants to develop their skills practicing the facts should benefit from studying Storytelling for Lawyers. Meyers concludes the book with a reflection on why law stories are different from stories told by journalists, filmmakers, and artists:

A final characteristic of law stories, especially the stories told in litigation practice, is that these stories are typically open or unfinished stories—their endings are strongly implied but not ordered or prescribed. It is up to a decision maker to write the ending, provide the closure and the coda that gives the story its meaning, and determine the outcome.

Legal storytelling has a rich literature, and anyone intrigued by this brief exploration of Meyer’s book would enjoy delving into the legal storytelling/applied legal storytelling scholarship. One gem is  Ruth Anne Robbins’ Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle L. Rev. 767 (2006). She argues that the client should not look to the judge as the hero and savior; the client should show how they are traversing a series of challenges and need the judge’s help in a mentoring role. The client is the real hero, a flawed hero but a hero nonetheless, seeking to carry on with their larger, bigger, more meaningful challenge. So the judge is not supposed to save the client; the client can save themself if they can just get through this lawsuit and carry on with their larger quest. Thus the opposing party is not the true antagonist but merely a “threshold guardian” impeding the client’s real quest.

Law students can take heart in this advice as well, in understanding their own personal story and quest. Law-school exams are basically a “threshold guardian.” They are a gatekeeping challenge the law student must face in the larger quest for something more meaningful.

 

 

 

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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.

 

 

 

 

 

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The 4 T’s of Listening

One of Listen Like a Lawyer’s most enduringly popular posts is “A Model of Listening.” The honest truth about why it’s so popular appears to be that students enrolled in listening classes are doing searches like these:

models of listening
model of listening
HURIER model
HURIER model of listening

One clue that these are college students is the timing of these searches: they tend to spike toward the end of the fall and spring semesters. I had actually never heard of a college course in listening until starting this blog two years ago. That’s when I found Judi Brownell’s textbook, Listening: Attitudes, Principles, and Skills. One of the blog’s earliest posts was that Model of Listening posts exploring the “HURIER” model and how it fits with lawyering. (HURIER stands for Hearing, Understanding, Remembering, Interpreting, Evaluating, and Responding.) Apparently a lot of students are assigned to write about this model.

Thinking about college classes in listening leads, inevitably, to thinking about the idea of a law school class in listening. I am not aware of any law-school class focused directly and solely on listening in the way a legal writing class focuses on writing, for example. (Please comment or e-mail if this is not correct.)

Of course listening is directly involved in any class with interviewing, deposing or examining witnesses, or negotiating. It’s a small but crucial part of effective oral advocacy. And part of the overall motivation for Listen Like a Lawyer is that listening plays a subtle role in just about all law school and lawyering activities. A more effective listener is going to be better at taking exams based on in-class material, better at writing papers building off of class discussion, and better at handling skills classes and clinics. Essentially, listening helps in any context where other people are involved. (Professor Tami Lefko presented a menu of ideas for incorporating listening throughout the law-school curriculum at the 2014 Biennial Conference of the Legal Writing Institute, with slides available here. Her awesome collection of listening-related YouTube clips is available as a guest post here as well.)

At the conclusion of my legal writing class, I like to talk about the content of the class and next steps for the students using the following framework, the 4 T’s:

  • Tradition
  • Trends
  • Techniques
  • Transfer

The same framework could be useful in shaping a law-school listening course. So here’s an exploration of what the final class session might look like in a law-school listening class.

Tradition

Listening has its traditions (which have been covered and practiced throughout this semester). Perhaps the listening tradition most deeply embedded in law comes from the conflict resolution field. Mediators seem to have the most training and, in the mediators I’ve been lucky to meet, the most personal affinity with the value of listening. In mediation, the chance to be heard is respected if not absolutely paramount. The mediator’s role in “nuanced listening” for the real conflict is crucial.

Advocacy presents the opportunity for high-stakes listening. Lawyers who examine witnesses must be able to listen to a witness, echo the testimony when needed, and recognize what is not being said. (The same is true of listening to opposing counsel.) There is a strong tradition of listening as part of appellate advocacy as well: Listen to the specific question and respond to it. Listen to the overall feel of the bench and adjust your argument accordingly.

Unfortunately what seems to be the most significant actual or perceived listening tradition is the law is this:

Lawyers are terrible listeners.

This recent observation from John Suh of Legal Zoom may capture it all:

It does not seem a stretch to say the legal profession attracts talkers, not listeners. Any traditions of listening within the legal profession must thus reflect a knowledge of the audience. Essentially, many bad listeners will only want to get better if they think it’s in their self interest. That was one lesson of experience suggested by Debra Worthington, a professor at Auburn University and experienced trial consultant as well as co-author of another college listening textbook. In this sense listening can be coached in a somewhat Machiavellian way, like mindfulness coaching for Type A personalities.

Trends

Legal project management is one movement with listening-related implications such as planned and spontaneous face-to-face meetings. When is face time valuable or a waste of time? What about collaborative platforms that allow clients and lawyers to access and monitor each other’s work real time, with no “wall” of email protocol to separate the work from the communication about that work?

“Social listening” on social media channels is not really listening at all, but it speaks to the way business is done and people communicate today. Lawyers interested in social media will encounter advice to engage in social listening essentially for marketing and understanding how they and competitors are perceived. “Listening” on social media is also of course a trend in juror and witness research.

Returning to depositions for a moment, court reporters may give way to voice recordings and digital transcriptions, a controversial topic to say the least. (How would a listening course be graded? A lot of ideas come to mind and frankly many of them involve some aspect of writing about listening. For example, a good essay question in a listening course would be to discuss the movement toward “digital court reporters” and what that would mean for the judicial process.)

Artificial intelligence-enabled devices that can detect facial expressions—and perhaps predict lying—will be an interesting development to watch as well. Wearable “sociometric devices” may be able to measure and report a person’s ratio of talking to listening.

Techniques

Techniques of listening would of course include “active listening” as well as “passive listening,” as outlined in Professor Neil Hamilton’s law-review article Effectiveness Requires Listening.

There is also the technique of fact investigation that involves first listening with open-ended questions throughout the witness’s first narrative, and then reviewing each step with closed questions to firm up the information.

The art of asking good questions is so critical for lawyers not just in litigation but in any activity including—importantly for those who need to earn a living in private practice—marketing.

And listening for what isn’t being said is one of the most challenging and valuable skills a listener can work on. (Peter Drucker is the most often quoted on this point:  “The most important thing in communication is hearing what isn’t said.”)

Those are just a few examples of the “listening toolkit” lawyers can develop.

Transfer

As with any skill, the ideal is to be able use that skill in a variety of settings beyond the specifics of how it was taught and learned. This is the core of what “learning transfer” mean—transferring learning to new contexts.

Listening skills could be transferred in a myriad of ways. Strong recall of spoken language is always a benefit, but has to be adjusted for the social context. For example, a lawyer may show a high level of skill at remembering and echoing key parts of a witness’s answer and moving forward in an unforgettably effective direct or cross before a jury. However, this echoing might seem aggressive and/or robotic in a private and casual conversation with a prospective client. A subtle and selective echoing could work quite well. Or, weeks later, a thoughtful handwritten follow-up note that paraphrases the conversation can make a very positive impression.

One of the most difficult questions about lawyers and listening is the role of trust. Lawyers simply cannot deeply and trustingly—and naively—listen with an open heart in a combative deposition or negotiation. Different listening skills are required in collaborative and competitive contexts. Even with clients, too much trust may lead to trouble:

But if lawyers transfer distrustful listening to all contexts, that’s really not good either. Several great posts have been written on bad things that happen when lawyers bring certain communication techniques home with them, as in “6 Things We Learned in Law School that Shouldn’t Be Tried at Home.”

And even within work-related contexts, there is certainly room for lawyers to compassionately listen to one another. Perhaps a stronger listening culture with in the community could in some way help ameliorate some of the stress and alienation, not to mention substance abuse and depression, that afflicts the legal profession. Practices such as bar-sponsored “take opposing counsel to lunch” events are a start.

Learning is a process

The ultimate message of this “traditions-trends-techniques-transfer” framework is that learning doesn’t end—or at least it shouldn’t end, and for the truly effective lawyers and lawyer students it never ends—when any given class is over.

Where does this leave the lawyer who wants to be a better listener? For one thing, the lawyer can seek training and the opportunity to reflect on his or her current skills as a listener. Here are a few CLEs related to listening that were offered this past year: “Civility Skills CLE: The Art of Listening” and “The Ethics of Listening—and Not Listening—to Your Client”. I am fascinated with the idea of actors teaching “improvisation CLE” and hope to take one of these classes sometime. On a more traditional note, in a few weeks I will have the privilege of taking an intensive mediation class and fully expect it to address listening in depth.*

Beyond CLEs, lawyers can read about listening, not only on blogs (ahem) but also books such as Thanks for the Feedback (which is about taking feedback effectively and has a lot to say about listening more generally) or Power Listening (which is more in the strategic, utilitarian school of listening). A thoughtful and challenging legal blog that often touches on listening is Lee Rosen’s Divorce Discourse. (For example here’s a post on how not listening is one of the worst mistake a lawyer can make in an initial consultation.) Kenneth Grady’s Seytlines blog and other writing touches at times about listening to corporate clients in the context of larger themes about legal-services delivery and innovation. (Here’s his “5 Reasons to Become a Doctor Dolittle of Client Communication.”)

That’s at least 75 minutes worth of material to talk about. So that’s  the end of these hypothetical lecture notes for the hypothetical final class in a hypothetical law-school listening course. Good luck and please stay in touch.

*Side note for 2016: I’ve also recently had the pleasure of meeting and talking with several listening experts who are working on a potential listening CLE at the International Listening Association’s meeting in Tucson in March 2016. I may have the opportunity to be a guest speaker or contributor in some way, and will let blog readers know more about that as it develops.

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?