Category: Litigation

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Yes, I’m listening to Serial. Aren’t you?

The podcast Serial has, in the past few months, become the most popular podcast ever. As a dedicated bibliophile and not much of an audiobook fan, I’ve been surprised to become so engrossed. Serial reinvestigates the murder of Hae Min Lee, a high-school student from Baltimore who was killed in 1999. Her ex-boyfriend, Adnan Syed, was convicted and remains in prison. Serial raises a lot of questions about criminal justice, the legal system, and lawyering—and it manages to raise them in an interesting, suspenseful way. Listening is intertwined with these issues in a variety of ways, from our own experience as listeners to the vexed role of listening in the investigation and beyond.

Lawyer as listener

Lawyers are used to be the “tellers” in storytellers. As we listen to Serial, we experience a story as the audience. Producer Sarah Koenig controls the pace of the narrative both “week by week” and moment by moment. What immediately struck me—in a good way—was her use of pauses. She speaks quickly but in comprehensible segments, leaving space for understanding. She also uses the voices of others so well. Of course, one would expect nothing less from any affiliate of This American Life. Yet Serial brings a fresh appreciation for the interplay of voices and pauses delivered up for the listener’s ear. Just as one concrete benefit to spending your time with Serial: if you have a CLE presentation to prepare, it might inspire you to use a short video segment, or to experiment a little more with pauses and conversational suspense the way Koenig does.

It’s also interesting that each episode of Serial differs in length. Koenig doesn’t try to space out the narrative to fill a set length of time; she breaks off one coherent piece of the story, fleshes it out, and stops. An episode may be 28 minutes long, or it may be 53. The flexibility of the podcast format is extra courteous to the listeners: we can listen whenever and wherever we want, and we know that an episode is just exactly as long as the producer thinks it should be, no more. The fact it’s free doesn’t hurt either. (In episode 9 she asks for listener contributions, and to date enough has been gathered to support a second season.)

One more note on the listening experience, and this is a little more critical: Serial is in part a work of entertainment, and as such, it has own music. At first, the signature jaunty opening piano left me confused. The music also includes some looming, menacing moments, as well as plaintive notes associates with Hae, the victim. But when we later think of Serial and its phenomenal podcast success, I think we’re going to think of the jaunty piano. As Slate asked, “What the heck is Serial: A mystery? A comedy? A touching memorial?” I can understand why her family may be in pain to have her murder brought back into the public’s view—and the public’s ear—in this way.

Listening in the criminal-justice system

Then there is Serial‘s substantive coverage of how listening happens in the legal system. The listening comes in the form of information gathering, but also information-confirming, and the line between them is not always clear.

We hear several segments of taped interviews with a key witness—indeed, the state’s star witness—talking to Detectives Ritz and MacGillivary. One detective would ask a question that leads the witness to answer and perhaps ramble, at which point the other would follow up with pointed clarification, as Koenig points out. Perhaps it’s surprising that we hear any tactics at all in these interviews. Before taping, the witness and detectives spent three hours “ironing out” this witness’s statement, which was the standard practice back in 1999 and has since been discredited. As producer Sarah Koenig points out this untaped “pre-interview” is “where the mischief can happen, the contamination.” She’s quoting Jim Trainum, a former homicide detective and now consultant to police forces, innocence projects, and others (such as famous podcasts) on issues of interrogation techniques and false confessions. Serial hired Trainum as a consultant for the series.

In prosecution of Syed, the star witness had the virtue of providing valuable information the detectives hadn’t been able to get anywhere else. That witness also provided closure, “a satisfying investigative circle, a murder case on a silver platter,” Koenig points out. When detectives hear possibly conflicting details, they don’t push. The reason they don’t push are both explicit and much more subtle. In terms of obvious strategy, as Trainum states, “You don’t want to do something if it’s going to go against your theory of the case.” No confession is perfect; there will always be some inconsistencies. Those inconsistencies are handled very, very carefully because police don’t want to create “bad evidence.” Producer Koenig literally sputters when Trainum tells her the purpose of the interrogation is not so much to get to the truth as it is to make the case.

Compounding the conscious intent to make the case is the subconscious effect of verification bias. (Listen Like a Lawyer has previously posted on various cognitive biases including confirmation/verification bias.)

To illustrate verification bias, Trainum recreates the mental dialogue of a detective taking a statement, when that detective hears something that doesn’t quite fit: ”I want to believe you because you’re my witness and I think this is what happened and all that, so the fact that you’re giving me something that’s inconsistent and doesn’t fit my theory of the case, what does verification bias cause you [sic] to do? Ignore it and push it aside.”

By the time the detectives interview defendant Syed, as chronicled in episode 9, they have moved from information-gathering to what looks like information-confirming: they open his interview with a “theme.” One of the detectives introduced himself to Syed by suggesting that the detective himself had an ex-wife and could understand how “this” could happen. Serial doesn’t suggest that listening must always be open-ended and can never arrive at a central narrative. That would be naive. But Koenig is certainly suggesting the narrative that convicted Syed is problematic. In essence, Serial is listening to Syed’s story as of today, as it has developed post-conviction, in a way that the court system may or may not do. His petition for post-conviction relief is pending.

Serial has finished its ninth episode and has a handful more to go. For lawyers who have not yet picked up on it, I do recommend it. For those who are already listening to Serial, please share your thoughts. How has the listening experience affected you? What do you think it shows about listening within the legal system?

AdvocacyCollaborationLaw practiceLitigationTrial advocacy

Second-chair listening

The role of a good second-chair lawyer at trial is strategically crucial. Yet the second chair’s contribution can be difficult to see, compared with that of the lead lawyer starring in the show. Two major components of the second chair’s contribution are preparation (before trial) and listening (at trial). The preparation gives the second chair something to contribute, and the listening is what allows the second chair to make that contribution at the right time.

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Courtesy Flickr/Independent Man

I wanted to write about second chairing partly based on my own experience (years ago) as a second chair at depositions, arbitrations, and trial. Sometimes I knew I was being helpful, such as by pointing out some questions the lead attorney didn’t quite get to. Other times I worried that I was being annoying or distracting and wasn’t sure how to adjust the filter on how much to share. It was crucial to listen not only to the information being revealed through the proceeding itself, but also to the subtle cues of the first chair on the best and worst times to speak up.

Various ABA publications have some good advice for second chairs such as “How to Shine as a Second Chair” by Myra Mormile and “Your First Trial: Understanding the Second-Chair Role” by Michael R. Carey. A few major themes of listening are woven throughout. One is active listening. The other is listening for what’s not there (perhaps the hardest kind of listening, cognitively). Another important aspect of the second chair’s role is that even though it’s not a starring role, the second chair is being observed as well. The second chair’s demeanor in the act of listening and assisting has to be controlled just as much as the lead lawyer’s.

Virtually every piece of advice on second chairing will talk about active listening. Mormile cautioned second chairs going to trial for the first time every to avoid “deer in headlights” syndrome. She’s not addressing active listening in the traditional sense of listening, rephrasing the statement back to the speaker, and asking him or her to go on. She’s talking about the activity that should come about as a result of listening:

Don’t react; anticipate. If the first chair turns to you more than you turn to him or her, you have failed as a second chair. Avoid this by anticipating where your first chair, and the case, is headed. Listen to your first chair, the opposing party, and the fact-finder. If opposing counsel directs the witness to an exhibit or references a specific case, you should pull it on your own before your first chair asks for it.

This idea that the second chair is always active also resonated with Carey:

[W]hen your first chair crosses that expert, you get to listen and take notes. But second chair is not a casual observer role–you are actively listening and evaluating the evidence for substance and delivery. Tell your first chair about any problems before it is too late. If you cannot successfully fulfill this role, you might as well be sitting in the gallery.

Listening for what is not said, what’s left out, what’s elided — that’s one of the hardest parts of listening, at trial or otherwise. The reason is what Nobel Prize winner Daniel Kahneman calls the availability bias. Our brains are biased towards information that is present in the affirmative sense. Yet to be a good second chair, a lawyer must try to overcome this bias and listen for missing pieces. As Mormile points out, “When your witness leaves out a point in his or her testimony, bring it to your first chair’s attention.” How does one overcome the availability bias to do this? It’s difficult, but checklists may help trigger your brain to search for gaps, a suggestion that certainly resonates with best practices for trial prep. (Just Google “trial preparation checklist.” Here’s one example of too many to count.)

Beyond listening for specific information, problems, and gaps, the second chair’s listening role is also atmospheric. The second chair should have some extra cognitive bandwidth (that the lead lawyer doesn’t, given the demands of that role) to monitor the entire scene, as Michael Carey points out:

You have the luxury of looking around the room to see who might be falling asleep, who is aghast, who is rolling their eyes, or who is nodding along with your first chair’s line of questining. First chair relies on you to provide a comprehensive evaluation of how the jury and the judge are responding to the evidence.

And your listening is itself being observed, as Carey further points out: “[R]emember that you are being watched by the jury. If you look like you are trying to spy on opposing counsel, the jurors will lose trust in you.” Thus, non-distracting, focused, respectful body language is crucial. Here are a good quick primer on effective body language in court and some videos from litigation consulting firm A2L.

As noted above and in earlier posts on this blog, I’m a strong proponent of checklists. The parent of the  checklists-in-the-professions movement is Dr. Atul Gawande, author of The Checklist Manifesto: How to Get Things Right. Gawande recommends that process-based checklists should include some sort of post-performance or “after action” review. For second chairs, this is crucial advice for many reasons, not least of which is that presumably most second chairs want to move up to first chair at some point. Second chairs can seek an informal “after action” by asking their first chairs, “How did I do?” Listening is very difficult to evaluate  in part because the act of listening is itself difficult to observe. But a first-chair lawyer who just finished relying on a second chair to perform a listening role may be able to give better feedback because of the intensity of that experience.

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Listening at Trial

United States District Judge Mark Bennett (N.D. Iowa) has published a great article on the “Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker ‘I Am a Litigator.'”

Studying the entire article would be an excellent use of time for any litigator trial lawyer. Judge Bennett’s coverage of being a great listener — Roman numeral VII in the article — is centered around a pretty strong criticism: “In my view, listening skills are incredibly underdeveloped in most lawyers I have observed in the courtroom.”

Judge Bennett outlines how listening is essential to core competencies of a trial lawyer such as understanding the other side’s case, being responsive to the judge hearing the case, and effectively examining friendly and hostile witnesses. It’s particularly helpful that he gives a specific example — in transcript form — of how a good lawyer can listen effectively at trial. Judge Bennett further points out that listening is rather helpful to building trust with clients, an important skill for any type of lawyer.

Hat tip to the Legal Skills Prof Blog, which shared this article earlier in the week.

AdvocacyLaw practiceLegal communicationLegal skillsLitigation

Not thinking like a lawyer

I went to meet the listening professors (Debra Worthington and Margaret Fitch-Hauser) expecting deep theory. And they did give some, using words like “psychometric” and reflecting on the history of the listening field.

Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser

Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser

But their practical work in trial consulting was where our experiences and vocabularies overlapped a lot more, and where our most interesting conversations took place. Professor Worthington worked for 15 years in courtroom communications before she delved more deeply into listening theory and research. Professor Fitch-Hauser, now celebrating her retirement from Auburn, also works as a consultant and is the person who drew Worthington into the listening field. Their work together culminated in the listening textbook Listening: Processes, Functions and Competency.

The combination of their theoretical strength with their practical experience in the legal field made me doubly grateful for the opportunity to meet and talk with them over a long lunch in Auburn.

Worthington recounted her work with a difficult witness whose arrogance had damaged his case, both on the substance and his refusal to heed his lawyers’ guidance on demeanor. Worthington studied his testimony to understand his view of the case. She talked with him to find out what “really made him tick.” And then she used his underlying motivation to explain the case to him in a different way, and to motivate him to adopt good witness practices not because his lawyers told him too but for his own reasons as well.

As I thought about this anecdote, I became even more intrigued with the role trial consultants may play as listeners. For example, intuition may affect one’s listening. A lawyer’s intuition on dealing with a horrible witness may overlap — but not completely — with a trial consultant’s own intuition. And thus the lawyer and trial consultant would bring complementary methods to the table not just in generating themes and telling the story, but in listening to the people who in turn will be listened to by the jury.

Along these lines, Worthington shared that at an early juncture in her career, after she had already been working in legal communications, she considered whether to continue with graduate education or go to law school. Her mentor advised the former. “Debra,” he said, “your greatest strength is that you don’t think like a lawyer.”

Fitch-Hauser echoed the value of stepping outside the lawyer’s perspective: “It is crucial for attorneys not to expect the client to think as they think, and to make adjustments, and to not expect the jury to think as they think. They need to adjust their strategy and the way they tell their story to meet the jury’s needs.”

Both Worthington and Fitch-Hauser have been interested in questions about how listening intersects with personality, and how listening can be measured. One question I wanted to ask both of them relates to measurement and self-assessment: “How can an attorney know if he or she is a bad listener?”

Fitch-Hauser jumped to take this question:

There are some things anyone — attorney, or any other profession — can do, if they are willing to be objective. Ask yourself: When someone asks a question, do you always know the answer before the answer is given? If your own answer is yes, you may be listening to yourself rather than the other person. This is “selective listening,” which by one definition means “listening for the information that reinforces your own attitudes, ideas, and feelings.”

Worthington added the terms “assimiliation” and “constrasting” to the discussion at this point. Assimilation means taking in information that fits your pre-existing beliefs. Essentially, if you believe someone is similar to you, then you may perceive information from that person as closer to your existing beliefs than it really is. And the opposite is contrasting. If you go into a situation thinking someone has different beliefs, you may tend to perceive that person’s information as more different from your own beliefs than it really is. (Assimilation and contrasting seem generally related to the cognitive phenomenon of confirmation bias. Some general thoughts on listening and various cognitive biases including confirmation bias have been explored on Listen Like a Lawyer here and here and here.)

Fitch-Hauser embodies thoughtful listening in her own conversational style, and reinforced that with some advice: “Don’t be afraid to use silence.” Sometimes clients come to lawyers with a “story” that may or may not match the facts. By talking with them and learning how they feel about the case, and at times remaining silent, an attorney can find out more about the real story behind what the client presents as the “official story.”

Worthington and Fitch-Hauser also touched on the power of nonverbal communication as an aspect of listening. “Look at the client as the client is talking,” Fitch-Hauser advised. “You can hear the pause and see them glance away. And then you can say, ‘It seems like there’s something else you want to add.'”

Ultimately, being a bad listener is somewhat part of the human condition, Worthington said. We all have moments of effective and ineffective listening. Lawyers, and anyone else who cares about communication, can seek an honest self-assessment of when they listen well and not so well. By keeping a communications journal, lawyers can start to recognize the situations when their listening is strong and weak. Reinforcing a theme from their textbook, Worthington noted that the answer to good listening versus bad often lies in the motivation to listen. “Motivation is finding some reason inside ourselves to expend the energy and get in there and listen.”

Fitch-Hauser sharpened the edge a bit: “Pretending to listen isn’t listening. Many people go through the motions. They put on the face, they lean forward, they nod, and they turn on a light. But they truly need to be home.”

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Therapeutic jurisprudence and listening

Suffolk Law School hosted a workshop Friday, April 11, on “The Study and Practice of Law in a Therapeutic Key: An Introduction to Therapeutic Jurisprudence.”  Therapeutic jurisprudence has been discussed and debated since the 1980s, and a working formal definition has emerged, quoted here from Professor David Yamada’s blog post about the workshop at Suffolk:

Therapeutic Jurisprudence (TJ) concentrates on the law’s impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law’s role as a potential therapeutic agent should be recognized and systematically studied.

TJ has been applied in specific contexts such as mental-health diversion programs, juvenile-offender programs, workers’ compensation, medical malpractice, and other areas. Apart from specific areas of law and problems, therapeutic jurisprudence has been explored as an overall mindset for the practice of law. TJ founders professors David Wexler and Bruce Winnick have written (Hein sub. req’d) that TJ asks “whether the law’s anti-therapeutic consequences can be reduced, and its therapeutic consequences enhanced, without subordinating due process and other justice values.”

Listening seems inextricably linked with a therapeutic approach to anything involving other people. Here are some preliminary thoughts on therapeutic and anti-therapeutic approaches related to listening skills that one might see in law practice and legal proceedings:

Therapeutic Anti-therapeutic
Comfortable environment Threatening, high-stakes environment
Listeners use receptive body language Closed body language
Sufficient time for sharing one’s story Time constraints cutting off story
Listener demonstrates understanding such as by paraphrasing key points Listener responds immediately with advice and instruction
Listener has expertise or experience in the situation Listener doesn’t “get it”
Responses help identify solutions Responses are “gotcha” moments
Door is open for sharing further information Pressure to remember and include all points in one sitting

I’d love to hear from law professors and lawyers who have studied and applied TJ concepts and methods in their areas of practice. A quick look at the literature suggests that TJ has had the biggest impact on specific court systems designed to address specific problems. Can and should TJ concepts filter into the general court system and general law practice? Perhaps it should be something that lawyers are familiar with and can draw upon when a situation needs more than just dispassionate analytical investigation and solutions. Mediators trained in TJ would seem particularly valuable in certain cases calling for a therapeutic approach.

And one does not need to have an advanced law degree in therapeutic jurisprudence to understand that giving someone your attention and listening to his or her story is one of the most therapeutic gifts anyone can share. 

AdvocacyLaw practiceLegal communicationLegal skillsLitigation

Oral argument as an improvised conversation

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

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

ditch-the-pitch-cover-150

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Law practiceLegal skillsLitigation

Is listening different for civil vs. criminal lawyers?

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

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

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

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

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Listening the first time

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

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

Courtesy Flickr/Jeffrey Beale

Courtesy Flickr/Jeffrey Beale

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

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

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

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

Clinical legal educationLaw practiceLegal skillsLitigation

Secrets in the courtroom

Courtesy of the J. Paul Getty Museum

Courtesy of the J. Paul Getty Museum

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

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

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

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

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

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

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

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

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

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