Category: People skills

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.

 

Client relationshipsClinical legal educationCollaborationEmotional intelligenceInterviews

Review of Alan Alda’s If I Understood You

ralph_anneThanks to Anne Ralph, Clinical Professor of Law at the Ohio State University, Michael E. Moritz College of Law, for this guest post reviewing Alan Alda’s new book on listening, If I Understood You, Would I Have This Look on My Face? 

Any lawyer who’s misunderstood (or been misunderstood by) a client, opposing counsel, or judge knows that failed communication can thwart even the best legal knowledge and skills. In If I Understood You, Would I Have This Look on My Face?: My Adventures in the Art and Science of Relating and Communicating, Alan Alda makes the case for an intentional focus on effective communication by highlighting the very real costs of failed communication: “[D]isengagement from the person we hope will understand us” [xvi]. This disengagement can “stand in the way of all kinds of happiness and success” [xvi], including, I think Alda would agree, success in the practice of law.

In Alda’s book, lawyers will find useful insights related to listening. Granted, most of Alda’s case studies and anecdotes center on how scientists communicate their knowledge—which makes sense given that Alda hosted the TV series Scientific American Frontiers for eleven years and founded the Alan Alda Center for Communicating Science at Stony Brook University. But Alda’s friendly writing voice and skill at sharing complex concepts in simple, memorable terms make the book valuable for anyone interested in improving their communication skills.

The book maps Alda’s own personal journey to improve his communication. Alda describes his communication “blunders” when he began hosting Scientific American Frontiers: He assumed he knew more than he actually did, which offended a scientist he was interviewing; he repeatedly ignored the scientist’s obvious body language showing discomfort; and finally, as he barreled along through an interview, he asked a set script of questions instead of questions that grew out of what the scientist was sharing. In short, Alda writes, “I wasn’t really listening to him” [6]. In this list of blunders, lawyers might recognize their own experiences with awkward client interviews, ineffective depositions, or unsuccessful negotiations with opposing counsel.

Alda, a prolific actor and director whose deep insights into human nature are apparent on every page, was disappointed with himself for being so disconnected in the interview. Alda’s acting experience, including his improv training, had taught him to connect to other actors in a deep and immediate sense, creating spontaneous responses between people. As a result, he had expected himself to be naturally better at listening and reacting to his interview partner.

Thus began his quest to better understand the science of communicating–or, as Alda puts it, borrowing a term from director Mike Nichols: “relating.” Relating, as Alda defines it, means “observing” another person with such awareness that “everything about them affect[s] you: not just their words, but also their tone of voice, their body language, even subtle things like where they’re standing in the room or how they occupy a chair” [10].

When Alda consciously used his improv training in his conversations with scientists, he found his way to “responsive listening,” the key first step in relating and a concept that roughly translates to being open to being changed by the other person in the conversation.

The willingness to be changed required him to use both his natural curiosity and an awareness of his own ignorance. It turned out that conversations were hampered when Alda made assumptions about the scientists’ work based on his own limited knowledge—those assumptions led him to ask limiting questions, which reduced the value of the information the scientists provided. But when Alda engaged in the kind of responsive listening that his improv work prepared him to do, the effect was contagious, leading the scientists to become more responsive as well. Alda described it as being “drawn into a kind of dance”[12]: Responsive listening made conversations dynamic because both participants in the conversation were constantly attuned to each other, instead of just waiting for each other to finish talking.

Naturally, Alda wondered if he had stumbled onto something big: would improv training help scientists better communicate complex concepts to the non-scientist world?

The answer is yes, as the rest of the book chronicles. Alda explores how people can develop their skill in relating, leading to better communication. As it turns out, both scientific studies of communication and his personal work with improv and acting bear out the idea that responsive listening is an essential building block in communicating anything to an audience.

For instance, Alda describes taking engineering students through of a series of improv exercises, which teach an ultimate lesson: “The person who’s communicating something is responsible for how well the other person follows him” [30]. In other words, true communication is inseparable from responsive listening and observing: “Communication doesn’t take place because you tell somebody something. It takes place when you observe them closely and track their ability to follow you” [17]. After these exercises, every engineering student’s delivery of a scientific talk improved. Again, Alda uses scientists and doctors in his stories, but the lessons can apply equally well to lawyers and clients or to lawyers and their other audiences.

For lawyers who want to better engage in responsive listening, this true connection that fosters communication, Alda identifies two key capacities:

  • empathy (which Alda describes as an emotional understanding of what the other person is feeling) and
  • Theory of Mind (which he describes as a rational understanding of what another person is thinking).

Both these capacities can be learned, and the book describes how teaching these skills to doctors leads to better outcomes for patients—and, interestingly, even to lower rates of medical malpractice lawsuits.

Because not everyone has access to the improv training or Theory-of-Mind courses the book describes, this blog’s readers might find Alda’s personal experiments at improving his empathy and theory of mind interesting and compelling. Alda participated in some small studies that aimed to increase empathy through practices he incorporated into his everyday life. For instance, he practiced reading the faces of people he encountered every day—from family members to passers-by on the street to cab drivers—trying to observe what they were feeling. He also practiced silently naming the emotions he observed. The results of these small studies suggest that these interventions have the intended effect of increasing empathy, and Alda invites readers to try these themselves. (In addition to describing how these exercises can improve one’s capacity for responsive listening, Alda also covers the role that increased empathy and awareness of Theory of Mind play in effective writing and in making a message memorable.)

I encourage lawyers to read the book—its friendly tone and use of stories makes the content memorable and accessible. Until you do read the book, consider the following as big takeaways for lawyers’ listening:

Listening is an essential part, a necessary precondition, of communicating well. Effective listening requires close attention to another person, thoughtful observation not only of words but of body language, withholding jumping to conclusions, and curiosity.

Thanks again to OSU’s Anne Ralph. She also writes about narrative as it is shaped (distorted?) by the rules of civil procedure. See more of Anne’s legal scholarship here: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1669761

 

 

Emotional intelligenceEmotional laborLeadershipMentoringmindfulness

Listening to Combat Loneliness    

According to this study in the Harvard Business Review, lawyers are #1 when it comes to being lonely at work:

In a breakdown of loneliness and social support rates by profession, legal practice was the loneliest kind of work, followed by engineering and science.

(Hat tip to Keith Lee of Associate’s Mind and online lawyer community Lawyer Smack. He wrote more about lawyer loneliness here.)

The legal industry may be particularly prone to loneliness because of the “game face” mentality necessary to represent clients effectively. Putting on a game face on for work can be a professional necessity, but also causes loneliness if it spreads to other facets of life.

People who are lonely often think that everyone else is doing OK while they are not. They think they are the only ones carrying a burden. I have had clients talk about putting their “game face” on rather than sharing truthfully about themselves.

This quote is from British psychotherapist Philippa Perry, board member of a social business called Talk for Health which aims to create a network of long-term peer support systems for meaningful sharing and listening.

Many lawyers and legal professionals and law students already have long-term peer groups in their colleagues and classmates. But if people are gathering on a regular basis with their game faces firmly in place, those peer groups may not be serving a support function at all. Is there anything lonelier than giving a performance that everything is wonderful and there is “nothing to see here”?

Peer groups that provide real support are one of the most valuable ways to combat loneliness. To delve more into the elements of real support, I went to the books—specifically the listening textbook authored by Professors Worthington and Fitch-Hauser of Auburn, Listening: Processes, Functions, and Competency. (I met and talked with them a few years ago and would do so again anytime because they are awesome.) They lay out some helpful categories of listening for social support:

Directive v. non-directive

Directive support provides “unrequested specific types of coping behaviors or solutions for the recipient.”

Non-directive support “shifts the focus of control from the giver to the receiver” and lets the receiver “dictate the support provisions.

Problem-focused v. emotion-focused

Problem-focused support seeks to help the speaker solve a problem.

Emotion-focused support seeks to help the speaker work through their own emotions

To provide effective social support, different strategies are called for at different times and in different contexts. Coworkers who do not know each other all that well are not just going to go out for coffee and start providing open-ended, non-directive emotional support. I recently went to a women’s bar event and heard a white woman explain that she really wanted to “be there” for her minority colleagues, but they didn’t seem willing to open up and share. Someone tactfully pointed out that you can be a good colleague just by being kind and reliable over time. Small talk is not meaningless; by being really interested in someone in a socially appropriate way, maybe a deeper relationship will develop. But no one is entitled to hear another person’s story at work.

Junior lawyers and new law students may seek and crave mentors who give them directive emotional support; I recently overheard a third-year law student lecturing—in a supportive but dominant voice—a first-year student. The 3L forcefully instructed the 1L to stop being distracted by a romantic relationship and focus on school, and everything would fall into place as long as the 1L put priorities where they belonged and made a point of taking this time to do what needed to be done, etc. etc.

This kind of directive advice can feel exactly right for a person who is lonely, unsure of their own path forward and how to be effective, or both. But over time, directive support may become more about the person offering it. Directive support can foster a dependent relationship that just leaves the recipient in an even lonelier place when the “director” is not around. A thoughtful mentor should reflect on their own strategies for providing support. Someone who naturally tends toward directive support should consider mixing it up with non-directive approaches. This means asking more questions, prompting the mentee to reflect and assess what is needed. Ultimately, non-directive listening may help a professional grow and take responsibility for their development.

Assisting someone who appears to be lonely is an advanced communication challenge. Jeena Cho has written about the difficulty lawyers may feel in breaking the cycle of loneliness:

When we feel loneliness, it’s easy to continue on the path to more loneliness rather than to do something about it. It makes sense that lawyers would avoid taking steps to break the loneliness because it would require vulnerability.

Others around a lonely person may be able to sense it and help them break the cycle. Worthington and Fitch-Hauser give an example in their book of the following—something that lawyers and legal professionals may recognize from their own conversations at work:

Person 1: Hey, how are you?

Person 2: Oh hello, I’m fine. How about you?

Person 1: Hmm, you don’t sound like you’re fine. What’s going on?

Person 2: Oh nothing. Really, I’m fine.

They acknowledge that in this scenario, 1 may accept 2’s statement at face value and leave the conversation. But to  really go in for the social support, 1 might push for more with something like “Are you sure? Did something happen at work that upset you? If you’d like to talk about it, I’m here to listen.” They acknowledge this is a heavy-handed response and suggest another, less intrusive way to handle the conversation as well: 1 may choose to sit down next to 2 and ask 2 a bit more specifically how work is going. As Worthington and Fitch-Hauser point out, even the heavy-handed approach can be helpful. It’s uncomfortable and possibly annoying, but it provides the potentially lonely person with the opportunity to respond.

Both of these possible approaches also avoid the “negative social support behaviors.” In terms of what not to do, Worthington and Fitch-Hauser list the following:

  • Giving advice
  • Using platitudes or clichés
  • Saying “I know exactly what you’re going through”
  • Telling people to stop crying or stop being wrong or embarrassing
  • Saying it’s not such a big deal and minimizing the situation
  • Blaming the person seeking support

Other than unsolicited and unwanted advice, these should be pretty easy to avoid. It’s much harder to provide truly effective social support. Really good social support tends to be “invisible”: “The recipient isn’t consciously aware that support is being given and, therefore, doesn’t feel any negative consequences of being the recipient.”

I think this observation crystallizes the true art form of helping a colleague break through their loneliness. If they become aware that (1) you think they’re lonely and (2) you are trying to help, your chance of effectively helping them drops precipitously.  Stealthy, invisible support using discerning, empathetic listening can encourage someone to begin addressing their loneliness by doing what Jeena talks about in her article: taking a tiny step.

Legal communicationNonverbal communicationPeople skillsPublic speaking

“I hear you”

“I hear you.”

Those words can be powerful. They can also be scripted.

At his listening session with survivors of mass shootings at schools and families of victims, President Trump was photographed holding a notecard with five points. They included questions such as “What would you most want me to know about your experience?” The last line, point number five, was “I hear you.”

Trump was derided by some for having to script out basic empathy. Was he actually listening?

There are multiple levels of listening. In their textbook on listening, Margaret Fitch-Hauser and Debra Worthington cite literature on workplace conflicts that identify six levels of listening:

  • Passive listening. This is “marginal listening” while sitting quietly while someone talks. “We are aware that the other person is talking, but we don’t expend enough energy to truly comprehend what the individual is saying.”
  • Responsive listening. This means “making acknowledgements, either verbal or nonverbal, that we are listening.” Responsive listening “has the potential to damage a relationship because we remain disengaged as a communicator but send the false message that we are paying attention and listening.” Responsive listening relies on established social schema (basically scripts, in this context) such as “How are you? Fine, thank you. And you? Fine thanks.”
  • Selective listening. This means engaging the brain and listening, but for “only things that support what we believe, think, or endorse.” Fitch-Hauser and Worthington call it “listening with an agenda.” Doing this too much leads others to resent the selective listener for having a lack of awareness.
  • Attentive listening. This is a form of selective listening because it does have an agenda—for example, a doctor or lawyer interviewing a patient or client. But the listener uses “probing and inquisitiveness” and “evaluative questions that guide the responses of the other person.” Still, this form of listening is about the listener’s agenda, not the speaker’s needs to be heard.
  • Active listening. This uses all of one’s listening capability and “total sensory” engagement to pay attention to verbal and visual cues: “we listen to the paralinguistic aspects of the message, we focus on the facial expressions and the body language, and we listen to the patterns of silence.” Active listening also means giving “reflective responses that provide feedback to the other party” demonstrating understanding and encouraging them to continue. Active listening requires accepting that the other person has feelings and ideas, although it does not require accepting that their feelings and ideas are justified.
  • Empathetic listening. This means “listening with the intent to accept and understand the other person’s frame of reference.” Empathetic listeners “suspend [their] personal reality and immerse themselves in the other person’s reality.” The purpose is not to gather information but to understand and accept the other person’s feelings.

The words “I hear you” could be used at several of these different levels. They may be a rote script, i.e. just responsive listening. They may be a placeholder for selective listening: “I hear you. But . . .” They may be a tool for the attentive listener to hasten the speaker and move on with the agenda of questions. Or the words “I hear you” may be part of a more complete response with active, empathetic listening. “I hear you. You just went through the worst experience of your life and lost your best friend. And you want to do something about this so it never happens again.”

So I think the problem with the notes containing “I hear you” is actually not that the president prepared substantive questions or was reminded to use listening cues. At least one person agrees with me, I discovered when searching for reactions to this photo:

Revealing that list of listening cues is the bigger problem and impediment to meaningful sharing. Being a good listener means managing your listening behaviors to establish your sincere intent.

But revealing a list of cues containing the words “I hear you” means any authentic utterance of “I hear you” would look inauthentic. The very visibility of the notes to others means the notes shouldn’t be used. At least not as to the overall generic reaction language of “I hear you.”

Revealing the cues could silently shape the dialogue by discouraging those who were considering sharing something, but spied the notes. Scripted responsive listening may damage a relationship, as Fitch-Hauser and Worthington point out. Seeing “I hear you” in someone’s pre-prepared notes could reasonably be interpreted to mean the listener will represent that listening has occurred, regardless of whether it actually has. And what’s the point of sharing with a listener on autopilot?

Using notes is not a bad thing. But notes—whether jotted on a 3×5 card, tapped out on a phone screen, or outlined on White House card stock—are a tangible part of the listener’s overall effectiveness. The notes should be held and managed with care to promote listening, not to distract and possibly stifle it.

 

 

Client relationshipsEmotional intelligencein-house counselMentoringPeople skills

Lawyer as anxiety filter?

In-house lawyer @J_Dot_J has described it most directly:

A law student once shared a related concept to describe his coping mechanism, especially during finals:

“Some people are stress emitters. Some are stress receivers. I’ve learned I’m a stress receiver, and I have to stay away from the emitters.”

The common theme is anxiety. It comes from somewhere, and it goes somewhere. Is there any pattern to the movement of anxiety, and any way to manage it?

One possible answer to this question is “Bowen theory,” which is a theory of family systems that has been extended to the workplace as well. “Are organizations emotional systems also? It appears to be the case. Theoretically, all that is necessary to create an emotional system is spending time together.” This quote is from Roberta Gilbert’s The Eight Concepts of Bowen Theory, which provides the basis for the following summary:

According to Bowen theory, the family—or workplace—unit is the key unit of analysis, rather than the individual. This unit is really a system of interconnected people, and it has two characteristics:

  1. Whatever affects one affects each one in the system. That is, anxiety moves easily from person to person in the group.
  2. [System] members trade “self” into the family relationship in a “fusion” of selves.

You may stop here and say that your team at work does not have these characteristics. If you’re correct, then you don’t have a true workplace unit and Bowen theory isn’t going to be helpful.

But it may be worth asking in a different way: Does anxiety move within your workplace? According to Gilbert, “where the anxiety travels defines the limits of the emotional system.” And does your workplace stake a claim on the workers in the system to “donate” some portion of their selves for work? Does the workplace send a message to “be like us” or “think as we think”? According to Gilbert, an emotional system is made up of these donations of self so that the donates parts become available “more for the family than for then individual.” In this way, members of a unit lose self into the larger unit. More togetherness means more loss of self, and quicker transmission of anxiety.

(When reading about this loss of self and its connection to “groupthink,” I was immediately reminded of compliance challenges and the work of my friend, compliance attorney Scott Killingsworth, on how organizational culture is transmitted and replicated.)

Individuals in a system are healthier and more resilient to the anxiety passed around in the group if they retain some core “differentiated self.”  The concept of the self has two components: a “pseudo self” which is the part that is tossed about by the anxiety of the group and conforms to the needs of the group, and the “basic [or solid] self” which is the part that fights for individuality and stands up for beliefs and convictions. The solid self is the differentiated self. The more the pseudo-self dominates the solid self, the more anxiety that member will feel and will contribute to the system.

Here, if you’re congratulating yourself on being an amazing differentiated person who feels absolutely no influence from your workplace, you may want to double-check yourself for some sort of emotional Dunning-Kruger effect. Gilbert states that if you looked at differentiated selves on a scale of 0 to 100, most of the population hovers around about a 30 and 50+ would be extremely unusual. But this is just an estimate; Gilbert notes that it’s impossible to measure differentiation in one segment of time. The conditions of any given moment are too arbitrary, and you can raise the functioning level of an undifferentiated person by giving them a compliment, and you can lower their functioning by criticizing them.

Within any unit, members of that unit deal with anxiety in four automatic and familiar patterns:

  • Making a triangle among three people, where one is the “problem” (such as a child, or a recalcitrant employee, or an attorney viewed as a roadblock)
  • Creating conflict by refusing to give in on major issues, expending significant energy
  • Seeking distance by slowing down or stopping communication, while still remaining emotionally defined by the problem
  • Overfunctioning / underfunctioning, in which one partner becomes more dominant and the other more passive.

These methods of dealing with anxiety are not a problem unless they become habitual and repetitive “where no one knows how to get out of it.”

There aren’t many references to Bowen theory in traditional legal literature. After reading enough to write this overview, I think it deserves more study, particularly as the legal industry becomes more focused on systems and processes. The law deals with unpredictable, complex problems; designing a system for helping clients with their problems will be much easier if the system of legal professionals is internally efficient and not clogged with stress and disrupted by attrition.

In future posts, I will explore some more ideas from Bowen theory and how they may apply in legal teams. Please comment if this overview prompted thoughts or questions.

GenderLegal communicationPeople skillsProfessional identity

Listening in the Family

Last week’s allegations of sexual harassment against Judge Alex Kozinski brought a response by the judge:

“I treat all of my employees as family and work very closely with most of them.”

Invoking the family is not an entirely warm-and-fuzzy metaphor, as several have pointed out (hat tip to @gokpkd for pointing out this thread):

Family is both a place where people can let their guard down—this could mean everyone in the family, or just some, or just one. It’s also a place where ingrained patterns can replicate themselves over and over—for good, or for bad. The experience of being in a family sets up your framework, or “schemata,” for understanding what happens inside that family, as noted in Debra Worthington and Margaret Fitch-Hauser’s text Listening: Processes, Functions, and Competencies. For children, early family experiences also influence the way they communicate with everyone else in the world.

Families can be classified in two communication orientations, according to family-studies scholarship cited in Worthington and Fitch-Hauser:

  • Conversation orientation, in which all family members converse freely about a wide variety of subjects.
  • Conformity orientation, in which “a family stresses the importance of having homogenous attitudes, values, and beliefs.” Such families “stress[] the importance of hierarchy and clear rules.”

It struck me in reading reports on Judge Kozinski’s chambers that the environment sounds like the worst of all worlds: Judge Kozinski himself certainly appeared to take a broad and flexible orientation toward conversation topics, including but not limited to pornography. But clerks themselves were expected to conform, according to Heidi Bond’s account. She reports being asked to control her own reading preferences as the judge ordered; she reports the judge grabbed her arm and described her as his “slave.”   That’s not healthy. And the extent of just how toxic this environment was, for some clerks, continues to unfold.

Even for those not reporting harassment or heeding internal alarm bells prompting them to avoid the judge, the family metaphor could be troubling. I was reminded of another post on company executives invoking family:

Whenever executives talk about how their company is really like a big ol’ family, beware. They’re usually not referring to how the company is going to protect you no matter what or love you unconditionally. You know, like healthy families would. The motive is rather more likely to be a unidirectional form of sacrifice: Yours.

Months before these allegations against the judge, the “family” metaphor was being taken down by Sam Sanders (@samsanders). His thread (and many responses to it) explored how work as a family may really mean not only exploiting the powerless but also hiding what’s wrong and protecting secrets:

What is a strong and healthy family? Fitch-Hauser and Worthington describe a strong family as follows:

  • Commitment to the family and well-being of its members
  • Positive communication and the ability to engage in constructive conflict management
  • Regular expression and confirmation of affection among family members
  • Enjoyment of quality time together
  • A feeling of spiritual well-being
  • Ability to effectively manage stress and crisis situations.

This list reinforces that work may have some characteristics of a family. One would hope the workplace offers constructive conflict management and the ability to manage crisis situations.

But work is not family. Family is family.

Clinical legal educationCollaborationFact investigationLaw practiceLaw school

The hothouse of law school

The great law professor Larry Ribstein used to say that legal education has grown within a hothouse. Flora and fauna grow in different ways in a hothouse than in a natural environment.

-William D. Henderson, quoted in Katrina Lee, The Legal Career: Knowing the Business, Thriving in Practice (2017)

For sixteen years I’ve been teaching in the “hothouse” of legal education. I’m certainly aware of differences between how law and legal skills are taught in the hothouse and how they are practiced in the natural environment.

Some of these differences are unavoidable and in fact beneficial. Education is preparation, and preparation can thoughtfully sequence legal topics and legal skills in a way that law practice does not and cannot.

SAMSUNG CAMERA PICTURES

But some differences between the hothouse and natural environment of practice are not necessary or helpful. It’s an essential part of the law professor’s task to be aware of this difference and make constant calculations about where to situate each assignment or discussion. A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

One key to making those calculations is knowing what happens in typical natural environment of law practice. Ann Sinsheimer and David J. Herring did a fascinating study of what lawyers really do at work. Of particular interest to the legal-writing professors, they found that lawyers they spend a ton of time meticulously crafting emails.[i]

Sinsheimer and Herring also found that lawyers spend a lot of time reading—no surprise there. But what they are reading is not nearly as case-driven as expected:

The scope of what these attorneys read was surprising to both the associates and the law student observers, particularly given the emphasis on reading judicial opinions in the traditional law school curriculum. In fact, our law student observers were surprised by the relatively few judicial opinions these attorneys read. Consider, for example, the following excerpt from the 2L observer who followed L, a third year litigation associate at a large law firm:

The types of documents L read varied based on what type of case she was working on and how big her role was within the case. What surprised me most about this was how little time she actually spent reading judicial decisions. While I was there, I witnessed her reading mostly treatises, statutes, case summaries, emails, discovery documents, and secondary sources. She did read some judicial opinions while I was there, particularly when she was researching a legal issue, but not as frequently as one would expect based on the strong focus on what seems like only judicial opinions in law school. A lot of L’s time was actually spent reading documents that most law students never see, such as discovery documents, business documents, contracts, and bids.

Thus, this study points out that legal education may in fact have a “hothouse” problem when it comes to reading. Classes on transactional reading and writing, administrative and procedural skills, and business skills would help bring their experience closer to what they will see in the natural environment.

I think there’s even more of a gap in how listening is approached in legal education versus how it’s practiced in the natural environment.

Yes, there is some excellent training in listening and communication, and I’ll talk about that in a moment. But what do most law students do, most of the time? This is what worries me because this is what I think the answer is:

Go to class. Sit somewhere between 5 and 100 feet away from the professor. Open a laptop. (Maybe) open a chat channel. Take notes. (Maybe) chat with classmates or others. Make eye contact—or not. Take good notes—or not. (Maybe) record the class and listen to it later. (Maybe) ask a question or be asked a question, every couple of weeks at best. Start to gather up books and electronic equipment in the last few minutes of the class as the professor wraps it up. Close the laptop. Leave. Get tested indirectly on listening skills during the midterm and final exam weeks or months later. Never find out if a weakness on that exam was the result of a listening, reading, or thinking deficiency.

This is bad training for listening in law practice.

A student may spend an entire semester never making eye contact, consistently multi-tasking, and never confirming whether the notes they took are accurate or complete. Not to mention the fact that these hundreds of hours spent staring at a screen conditions any human being to . . . want to stare at a screen.

This is a hothouse, big time.

There are some pockets of explicit preparation on listening—some places where legal education is closer to the natural environment of listening in law practice. Simulations and clinics present excellent opportunities for real-world listening skills. I’ve watched a video with Lyn Su of New York Law School where she brilliantly coached a law student on his interaction with a simulated client. That’s just one example of the helpful opportunities that are available for those who take advantage of them.

The Sinsheimer/Herring study did not explicitly address listening skills as such in the workplace. It did, however, suggest that preparation on listening to clients and judges, while better than nothing certainly, is not quite what many new attorneys really need:

Communication skills were fundamental to these attorneys, but the sort of skills they drew upon are not a key part of the traditional law school curriculum. Communicative acts in law school often involve preparation for courtroom appearances or client interviews. In contrast, the sort of communication engaged in by the attorneys we observed was usually intra- and interoffice or business communication. Despite what their law school experience might have suggested, these attorneys made few court appearances and had limited client communication.

So how to get out of the “hothouse” and into more of a natural environment for actively teaching these skills? Having more clinics and simulations is one solution, and the ABA’s new graduation requirement of six experiential-learning credits will definitely have an impact. But students need a lot more than six hours of credit to graduate and could still spend hundreds of hours staring at their screens and typing notes.

One highly promising solution is the idea of team-based learning, where students have to talk and listen to one another in small groups. Working in a small group that is accountable to one another means that each team member’s listening skills (and all people skills) will matter much, much more. Professor Lindsay Gustafson of University of Arkansas-Little Rock has spoken about using team-based learning not for a skills class or clinic but for . . . 1L property class.

I’ll say more in future posts about Gustafson’s work and team-based learning as an escape from the “hothouse.” Professor Anne Mullins of North Dakota has done good work on team-based learning as well.

And I invite comments about what are the right communication skills for the natural environment of law practice, as well as how to teach and promote those skills through legal education.

…….

[i] Legal-writing professors talk all the time about whether memos and appellate briefs are too much like “hothouse” assignments. The rise of the email assignment and shorter assignments in general are a sign that legal-writing classes are evolving to better represent the actual nature of practice. (It can never actually “be” the true experience but only a simulacrum for educational purposes. And that’s as it should be, since it is by definition education and preparation for that experience.)

In speaking, moot court is an excellent advocacy project that is also fairly criticized for being, at times, artificial. An example of a critique is Steven Berenson’s article in the New Mexico Law Journal, Preparing Clinical Law Students for Advocacy in Poor People’s Courts. He argues that students need to be ready to speak in a much less structured and more chaotic environment.

 

Cross-cultural communicationDiversityEmotional intelligenceLaw schoolLegal education

Civil disagreement

In a recent Time editorial, Yale Law Dean Heather Gerken lionized the law school as a bastion of civil disagreement. She cited the uninterrupted speech of Charles Murray at Yale as an example of civility:

Law school conditions you to know the difference between righteousness and self-righteousness. That’s why lawyers know how to go to war without turning the other side into an enemy.

A student group collectively responded, arguing that Gerken mischaracterized their protest during Murray’s visit to Yale and suggesting limits on law’s social and political influence:

If anything, our legal training has taught us that civility has its limits, and that disruption, creative protest, and rule-breaking are valid and often necessary tactics to effect change.

Amidst this debate and much, much more, a new class of law students is arriving at law schools across the country right now. Thus I was grateful to hear some excellent advice on promoting discussion and civility in legal education, shared at the recent Southeastern Association of Law Schools’ Conference.

Professor Suzanne Rowe of Oregon Law spoke on a panel about building character in the classroom. She briefly stated the character values law school seeks to instill—integrity, trust, respect. And then she focused on specific tools and methods for discourse within the classroom. That may not be all we need right now, but it definitely can help.

What do students need? They need to hear other views, respect other viewpoints, share their convictions with other classmates, and engage across the spectrum of ideas.

But what happens when this “spectrum of ideas” leads to a truly difficult conversation—where someone offers an opinion that fundamentally attacks the integrity, worth, and humanity of another person? Professor Rowe offered a roadmap for responding in these moments:

1.  Recognize what happened.

For example, the professor might describe reactions: “I’m seeing eyebrows raised and people seeming very uncomfortable.”

2.  Share what you feel and believe.

After an objective assessment of what has happened, the professor can share her reaction. For example, “I believe you can say that in a more professional way” or “I feel that the words you’ve used are harmful to members of our community.”

3.  Act

If the professor has prepared for this type of disruption, she might immediately lead students in a discussion of the unprofessional or harmful comment. If not, she might ask the class to take a break and regroup in a few minutes or the next day to engage in that discussion.

Professor Rowe also talked about teaching the value of disengaging. Students can engage more fully when they know they do not have to continue engaging no matter what they may hear. Some students might chose to step out of the classroom during a discussion.

There are no easy answers, but the framework for recognizing, sharing, and acting—plus disengaging at times—may help.

Emotional intelligenceLaw schoolMediationmindfulnessPeople skills

Mindfulness without meditation

They had me at “hello.”

Actually they had me with the title of the handout:

“Mindfulness without Meditation.”

Last week I attended the 2017 meeting of the Southeastern Association of Law Schools, a.k.a. SEALS, in beautiful Boca Raton. The SEALS meeting lasted all week but included a two-day Conference on Mindfulness in Law co-sponsored by SEALS, the AALS Section on Balance, the Mindfulness in Law Society, and the Fredrick P. Lenz Foundation.

Day two featured a session on “Emotional Intelligence and Mindfulness in Law.” That’s where the elusive promise of mindfulness without meditation came in. There were several speakers, and I hope to blog about each of them. This post focuses on remarks by William Blatt of the University of Miami.

Professor Blatt has seven years’ experience teaching a law-school course on emotional intelligence and mindfulness. He acknowledged that mindfulness as a concept can be difficult to effectively communicate. Being mindful helps people to be at peace with themselves, to be more productive, and to have better relationships. But it’s like a neutral gear or a general state. It’s universal, but subtle. Telling someone to gain emotional intelligence by being mindful is like telling a triathlete to get better by exercising.

Professor Blatt uses his mindfulness class to delve into more specifics:

  1. Attention regulation

Students are drawn to techniques that help them concentrate better because they know it will help them academically. To help students see how they must intentionally focus, Professor Blatt draws a parallel to focused intensity in body building. He walks students through a bicep curl exercise. No weights are needed. The first time you just lift your arm. The second time, you imagine a marble in your bicep and you place a finger on your bicep, lifting your arm with focused intensity.

  1. Body awareness

Becoming more aware of your own body can help with mindfulness. The bicep curl exercise above is one way to do it. But Professor Blatt showed some more energetic ways to do this. First, breathe for 30 seconds but forcibly exhale. Let your breath be heard. By breathing out so strongly, you gain more body awareness.

Beyond that, you can get up out of your seat, put your arms over your head, bend your knees, and jump. Like 20 times. Your attention will come back to your body. Yes it looks strange to see a hotel ballroom full of law professors doing this, but it works.

  1. Emotional regulation

One barrier to mindfulness is repetitive thoughts. Professor Blatt shows students how to take a word—maybe “stress”—and repeat it over and over again. The key is to distort it. Repeat it so fast that it sounds like gibberish. Or slow it down and say it in a deep, slow, movie-trailer voice. Or say the word in a mouse voice. These techniques can break the association of such repetitive thoughts.

Professor Blatt also talked about ways to reframe certain feelings. Stress may feel like a threat, but perhaps it can be reframed as an opportunity. This is easy to say and hard to do. Professor Blatt suggested a good technique which is to change a problem into a question beginning “how…” For example “I’m feeling stressed about maintaining this blog” could become “How can I continue to find and post good content on this blog?”

Building on this interrogative technique, Professor Blatt talked about the broader “release technique” which walks through a series of questions about deciding whether to release a current emotional state—or not. The hyper-rational among us who find themselves dealing with an unwanted emotional state may like this pragmatic series of steps.

  1. Perspectives on the self

Does an individual have just one personality—one mood, one approach, one way of being in the world? “I contain multitudes,” Walt Whitman wrote. Professor Blatt discussed a technique for mindfulness in which you try to acknowledge these different “sub-personalities.” The examples he gave were the controller, the seeker, the skeptic, the big mind, and the big heart. Allowing yourself to “hear” the voice of these sub-personalities builds compassion for yourself and is connected to mindfulness more broadly.

I enjoyed Professor Blatt’s remarks about mindfulness because they spanned a wide range of mindfulness techniques from active (jumping up and down) to practical (using a checklist for deciding whether to let something go) to linguistic (articulating a difficult word in an exaggerated way) to conversational (practicing “talking and listening” to your own sub-personalities).

As he said, mindfulness is a general state. But there are many paths to reach—or at least to seek—that state.

Cross-cultural communicationEmotional laborPeople skills

Extreme listening

Recently I used a ride-sharing service that shall remain nameless. I was with another law professor on our way to the airport from a weeklong conference. It was a 30-minute ride.

The driver was a relatively young person. For the first half of the ride, he drove without speaking. My friend and I discussed the conference, some professional gossip, and what we will be working on next year.

We reviewed the conference and I described one of the sessions I attended, on raising average Americans’ awareness about participating in the regulatory process. Speaking colloquially, I summarized a key point from the session: outside of the realm of law professors, many people are basically “stupid” about the administrative process. It was not a word used in the session; it was my shorthand to mean ill-informed.

That colloquial word somehow emboldened the driver to speak up.

“Are you lawyers?”

Scanned Image 01611

“Antarctica” by Jeremy T. Hetzel is licensed under CC BY 2.0

We told him we are law professors, and we don’t practice law anymore. That did not give him any pause.

“Can I ask you a question?”

Our extreme listening saga began as the driver shared his personal passion and desire to sue the federal government. He has been studying information about a few globally prominent and historically famous billionaire families. He believes they have some connection to the continent of Antarctica. Something is happening in Antarctica, and he wants to know more about it. Specifically, he said, he wants to get into court and have a judge—and the public—take him seriously.

My friend and I gave him some leeway.  “To get into court, you have to have a legal claim. You have to be injured in some way that the courts would recognize as something they spend their time on.”

He did not have a sense what his claim would be. He did say he feels Antarctica has resources that are either not being used or are being used by global families in some way that needs to be discovered and revealed. “I want to do something drastic,” he said. “I want to make a difference.”

This was a listening challenge for several reasons. I didn’t want to listen to him at all; I wanted to talk to my friend. I didn’t believe anything he was saying. And I didn’t agree with his choices to spend his time ruminating on such theories. He’s about the same age as many law students, and it made me feel like he was wasting his off-hours from work staring at various websites. Maybe he needs an outlet for his curiosity and engagement with big questions because he has to work and earn instead of pursuing formal education. That is possible, perhaps even likely. But whatever the reason for his life situation here and now, there is wisdom in focusing one’s efforts on changing one’s actual sphere of influence. (I believe that’s from Stephen Covey.) Yes, the Internet is amazing and allows investigation plus amplification of voices—but it does seem that uncovering a global conspiracy in Antarctica is outside the sphere of a 24-year-old ride-sharing driver in a southern U.S. state.

Whether to keep listening and if so, how to manage this conversation?

I tried echoing about “making a difference.” I asked him if he has family in the U.S. and he said yes, although they live almost a thousand miles away. I said, “When I start to think about making a difference, I think about my family and how I can help them. That’s something I know I can work on.”

My friend nodded toward me, but her eyes signaled a desire for exit.

The driver repeated his desire to do something and make a statement. He mentioned wanting to know what NASA is doing in Antarctica.

I tried to think of something he could actually do. I told him about the Freedom of Information Act. I also told him about the ability to file a public comment if he found an agency that is dealing with Antarctica in some way.

When there was a short lull in the conversation, I turned it back to my friend with a moderately loud question aimed solely at her. She picked up the conversation and we reclaimed the rest of our time—although not really since there were only about five minutes left in the ride and urgent questions about airlines and terminals and such.

A few thoughts lingered after this conversation.

There aren’t that many spaces in this world where people with extremely different viewpoints come together to discuss those viewpoints in a context expected to be civil. I am not sure what persona this guy might use while researching his interests online, but his persona while driving the car was extremely professional and courteous. Reflecting on our conversation raised several important points for engaging with people with different viewpoints.

First, conversations work best in good faith. Try to find some area of common ground. Try to find a way to help the other person on their chosen journey even if you really don’t agree with their choices.

Second, honor the risks that the other person in a conversation takes. This guy took a risk by asking us whether we are lawyers. He used caveats like “I know it might sound crazy, but….” If we had curtly cut off the conversation and used all the time for ourselves, what would his takeaway have been?  Would we have confirmed that lawyers are jerks?

Third, stand for your own beliefs, ideally with kindness. At one point my friend explained what we teach: “The most important thing, really, is critical thinking—the ability to tell what’s true from what’s false.” She was giving him something to think about in the future, and laying out a boundary for the immediate conversation.

Finally, look for opportunities in a conversation. One way to build a conversation is to echo what the other person is saying and add more. You can sometimes shape the conversation by what you choose to echo. The most famous improvisational technique is “Yes, and…”

Also look for opportunities to refocus. Ending a conversation is a skill, especially when you’re in a small car with miles to go until the airport.

Related posts: A high-intensity listening workout and Listening until it hurts