Category: People skills

Client relationshipsCollaborationEmotional intelligenceLaw firm marketingLegal communication

A Day of Listening      

Thursday, September 15, 2016, will mark the International Day of Listening, an event envisioned and promoted by the International Listening Association. This Day of Listening has its own website with some excellent listening resources and ideas.

screen-shot-2016-09-08-at-11-49-20-am

For lawyers, law students, law professors, and legal professionals, I will highlight a few ideas for what to do on the International Day of Listening. Or any day, really. The big idea is that listening is helpful on any given day.

Invite someone to a conversation.

The website provides a template form for inviting someone to a conversation. The template looks a little bit like a subpoena or affidavit, so lawyers wishing to make a personal connection with someone may want to avoid or modify the actual form and focus on the concept. The form envisions providing a topic for the conversation; this isn’t randomly generated small talk but a purposeful conversation. Even more important, the person initiating the conversation makes a commitment: “I promise to give my undivided attention and to do the best job of listening I can.” This is a one-way promise offering something valuable without expecting or demanding something in return.

Invite a group to a conversation.

The website also provides a template form for initiating a group conversation also centered on a stated topic. Here the group makes a pledge to one another: “We will all pledge to give our best efforts to listen well to one another.”

The phrase “best efforts” stuck out at me as an interesting term for lawyers. Ken Adams has analyzed the history and meaning of this phrase in contracts. Interpreting “best efforts,” various courts have imposed a good faith standard, something more than a good faith standard, a reasonableness standard, and a diligence standard. Because the idea of “best efforts” can be vague in a legal sense, it helps to compare efforts against a benchmark, Adams points out. Benchmarks can include explicit promises made during negotiations, industry standards, the same party’s practices in similar situations, and how the parties would act toward one another if they were united in the same enterprise.

Fortuitously, the website for the International Day of Listening does offer a nice benchmark-type resource. They don’t call it a benchmark or a bookmark but actually a “ListenMark.” It’s available both here and here in the Professional Activities section of the website. I think the intent is for people to use the “ListenMark” as a bookmark or other tangible reminder. Although the name is kind of corny, the content is excellent. From putting electronic devices away and giving undivided attention to giving nonverbal signals and being familiar with others’ expectations about how to show respect, it’s a solid overview of good listening practices. It could be a good review to glance over just before key meetings.

The Professional Activities section of the website is structured around lideas for professional activities to try on September 15:

·          Tech-Free Meetings
·          What Happens When You Tune Out
·          Free Listening
·          Listening to Opposing Viewpoints
·          Listening to a Life Story
·          Listening Café
·          Discussing Issues
·          Listening to TED
·          “When am I listening or being listened to”
·          Successful Listening Strategies
·          First Hit the Pause Button

One of my favorites on this list is “Listening to a Life Story.” Carole Grau submitted this idea, and it’s a good way to learn more about a longtime coworker—perhaps someone you see every day but don’t know that much about. The core of the activity is this:

Have the listener identify a significant company employee or a long­time employee/member that they (the interviewer) can interview about that person’s (the interviewee’s) life story and their experience within the organization. What have been significant events in the company/organization or in the person’s life while they have been employed or a member?

Bar associations encourage activities such as “take opposing counsel to lunch.” What about dedicating some listening time to a longtime contributor within your own firm or organization? The longtime courthouse runner at my old law firm recently passed away; he was a consummate legal professional with so many great litigation stories. He would have been an incredible interview along the lines Grau suggests.

The outline for listening to a life story gives more details on conducting such a conversation and listening effectively. It recommends resources such as an app offered by  StoryCorps, which itself promotes a National Day of Listening the day after Thanksgiving every year. (In a world of so much talking past one another, we really can’t have enough listening days.)

These are just a few of the ideas and resources available on the website supporting the International Day of Listening. The purpose of this post is to encourage lawyers, law students, law professors, and all legal professionals to recognize and practice listening on September 15, 2016, and other days too.

CollaborationEmotional intelligenceInterviewsLaw practicePeople skills

It’s interview season

For law students working on fall campus-interviewing opportunities, here is a roundup of posts on listening during interviews:

And a few additional posts of interest to candidates facing interviews:

 

Clinical legal educationCollaborationLeadershipLegal communicationLegal writing

What lawyers say, and what they actually do

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

Client relationshipsFact investigationLegal communicationLegal skillsPeople skills

More on flow and listening

Feeling “flow” means being fully immersed in a challenging task, with a sense of energy and enjoyment. Lawyers might find flow when they have enough skilled experience to know what they’re doing and encounter a new challenge using their skills, as previously mentioned in this post. The founder of flow theory, Mihaly Csikszentmihalyi, created a visual model of flow:

Screen Shot 2016-06-14 at 5.20.20 PM

Credit: Wikipedia (citing Csikszentmihaly, Finding Flow (1997))

As you can see the states inferior to “flow” reflect a mismatch between skill and challenge:

  • Apathy
  • Boredom
  • Worry
  • Anxiety

States with a closer match can be found closer to the upper-right:

  • Control (but the skill slightly outweighs the challenge)
  • Arousal (but the challenge slightly outweighs the skill)

In the far upper right area, where a high skill level meets a high challenge level, you find flow.

The model below is a variation on Csikszentmihalyi’s general model, tailored for lawyers and legal professionals. The examples here all focus on listening.

image

Please use the comments or social media to suggest other examples and share thoughts on lawyers and flow. What types of listening experiences prompt apathy or boredom? What types of experiences prompt worry or anxiety?  And what experiences may lead to flow?

CollaborationEmotional intelligenceLegal communicationPeople skills

Listening flow

Watching the NBA finals—and seeing Stephen Curry score 38 points in Game 4—makes this a good time to talk about “flow.” Flow is “the mental state of operation in which a person performing an activity is fully immersed in a feeling of energized focus, full involvement, and enjoyment in the process of the activity.” Curry echoed these words in analyzing game 4: “I think we just got back to enjoying the process . . . .”

Flow comes up in an older basketball story from Bill Russell, recounted by business author Jeff Walker:

He described a playoff game where, for five minutes, the court “opened up” to him: somehow he knew where every player was (including those who were behind his back) and exactly what moves he needed to make. Even more mysterious, all of Russell’s teammates felt exactly the same. They scored more points during those five minutes than ever before. Leaving the court in victory, they turned to one another and said, “We have to figure out how to do that again!”

Psychology professor Mihaly Csikszentmihalyi has been writing about flow since the 1970s and founded the field of “flow research.” (Here’s his TED Talk.) In a chapter on “The Concept of Flow” co-written with Jeanne Nakamura, he itemized the characteristics of being in flow:

  • Intense and focused concentration on what one is doing in the present moment
  • Merging of action and awareness
  • Loss of reflective self-consciousness (i.e., loss of awareness of oneself as a social actor)
  • A sense that one can control one’s actions; that is, a sense that one can in principle deal with the situation because one knows how to respond to whatever happens next
  • Distortion of temporal experience (typically, a sense that time has passed faster than normal)
  • Experience of the activity as intrinsically rewarding, such that often the end goal is just an excuse for the process

The conditions for achieving this state include having a clear goal, immediate feedback, and a good match between the person’s skill level and the difficulty of the task. Flow is most associated with creative activities and sports (thus the connection to basketball). Flow is not so much associated with passive activities. As the studies point out, watching TV is not the same thing as achieving flow.

What about practicing law? Much has been written about lawyers’ achieving flow as part of career satisfaction, such as here and here and here. And in particular, what about lawyering and listening? Listening is a “receptive” communication channel along with reading, unlike the productive channels of writing and talking. (I take it as a given we all know lawyers who enter some kind of personal “zone” when they are talking.)

The most direct approach to listening and flow is to look at listening as part of a larger project with a goal. For example, taking a deposition. A deposition is an intense listening experience aimed at producing something very specific, namely a useful written record to use in the litigation. While working toward that goal during the deposition experience, lawyers may find it comes pretty naturally to focus and enter a flow state on what the witness is saying and what questions to ask. The adrenaline certainly helps. And if a real-time digital transcript is available, that’s instant feedback as well. On the other hand, achieving flow supposedly means getting past worry and fear of failure. I’m not sure most lawyers taking depositions would say they completely let go of fear and worry in the experience.

Also the idea of flow is that you lose the awareness of yourself as a social actor. But contentious depositions mean maintaining several layers of social awareness—not just the question being asked, but also the potential leverage for various motions and other interventions if the lawyers and witnesses do not cooperate. So it does seem possible for a lawyer taking a deposition to experience aspects of flow such as intense focus and distorted perception of time, I’m not sure many would claim they truly felt flow in a situation like this. Thoughts and feedback are certainly welcome in the comments here as well as on social media (Twitter: @ListenLikeaLwyr).

What about listening when there is not necessarily a clear external goal such as making the record? The best conversationalists seem to be motivated by the goal of just focusing on the other person—having a conversation because the other person is just so interesting. One of the scholarly models of listening has a final step of “staying connected and motivated.” (This is the Worthington/Fitch-Hauser model.) Great conversationalists seem to be intensely focusing on the conversation, easily able to contribute without effort, and intrinsically rewarded by the experience of having it. And whether or not they are actually experiencing flow, they create the perception of flow for the other person in the conversation.

Beyond listening for a project (such as making a record) and listening one-on-one, collaborating with others in a group has at least the possibility of some sort of flow. Csikszentmihalyi and Nakamura refer to “shared flow.” Business author Jeff Walker (who recounted the Bill Russell story above) calls it a “collective flow state.” Not a lot has been written about this idea of shared or collective flow; Csikszentmihalyi and Nakamura suggest it needs more academic study.

Some articles on lawyering and legal education do raise the possibility of creating flow within collaborative groups of lawyers and law students. Csikszentmihalyi’s flow concept is cited in this article on the experience of team lawyering doing clinical work for Haitian refugees with HIV-positive status, by Albany Law School’s Raymond Brescia:

The team nature of the effort, and the affirming trust members of the team gave one another, meant that as we developed different strengths and skills, we were able to achieve benchmark milestones, receiving constant feedback along the way which gave us information that allowed us to develop our expertise.

Likewise Stephen Krieger and Serge Martinez describe the experience of flow in their article A Tale of Election Day 2008: Teaching Storytelling through Repeated Experiences, 16 Legal Writing 116 (2010). These professors led a team of students in advocating for individuals seeking to vote on November 4, 2008, and they noticed a marked and somewhat unexpected improvement in these students’ storytelling skills through the course of that single day. They concluded that flow conditions were a partial cause:

Apparently—and without any conscious intent on our part— the surroundings on that date contributed to the experience of flow. There was easy access to information; Steve, an Election Law expert, was present. There was stimulation from other students and attorneys handling similar cases. And there was an overall sense of community of purpose. As Dan implied, it felt like a neighborhood law office, not like a classroom.

These articles may actually be suggesting individual flow experienced by the students and professors in a group setting, rather than shared flow within a group performing together (such as an NBA team). When the team functions as a unit with interdependent parts—when each team member knows when to speak and when to sit back, when the lead lawyer looks down the table to ask a question only to receive the answer on a post-it already en route—that’s shared flow.

Please share your thoughts on individual and shared flow, and the experience of listening as part of flow.

In a later post, I will explore some counter-points to flow such as this post from Cal Newport suggesting that seeking flow is not the same as engaging in deliberate practice. I’ve often thought that for legal writers, seeking a feeling of flow may not produce high-quality work, especially for very new legal writers. The article about the Election Day clinic appeared to be describing an upper-level clinic where students had a base of knowledge to deploy that day. I want to think more about how this point could apply to communication and listening.

In the meantime, here’s a link to an ABA Journal article on flow for lawyers, by Steven Keeva, a prolific and kind ABA writer who was gone too soon:

https://books.google.com/books?id=UbXRppru0BYC&lpg=PT159&ots=AH6z2v7lsn&dq=lawyers%20and%20flow%20state&pg=PT159&output=embed

 

 

 

 

 

 

 

CollaborationFact investigationLegal communicationLegal writingPeople skills

Listening for summer associates

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

The assignment and the work

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

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

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

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

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

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

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

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

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

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

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

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

Social skills

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

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

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

Evaluating listening

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

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

Adding value and building professional identity

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

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

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

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

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

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

Client relationshipsLaw firm managementLegal communicationPeople skills

Anticipation = preparation

This week Attorney at Work re-published a “classic” (i.e. 2012) post by Gerry Riskin on “Five Things Lawyers Hate to Hear Clients Say.”  This post lays out some predictable, potentially recurring situations where communication is sensitive and can easily go awry. These situations certainly deal with classic challenges to lawyer-client relationships such as setting retainers, delegating work, identifying additional work, and dealing with an unhappy client.

Riskin says he’s not offering any scripts although the post does offer some ideas on language that might be a good start. He also qualifies that the post assumes the lawyer in these situations is in fact offering excellent service of unsurpassed quality. The idea is to anticipate challenging situations that arise even when the lawyer does provide great service and to handle them with tact. Part of this, of course, is listening and not getting defensive.

 

This post caught my interest because it’s not a “top-down” approach to listening. Instead of laying out general techniques and then applying them, it is structured around very specific situations where communication and client relationships are challenging. This seems more interesting to lawyers who don’t care about listening in an abstract sense but do want to have better experiences than the stressful situations they’ve encountered with clients. 

Focusing just on specific situations—the ones listed in Riskin’s post or whichever situations are most likely to arise in a particular lawyer’s practice—should certainly help a lawyer maintain client relationships. The opposite strategy, reacting in the moment without much thought and doing the same thing over and over, seems quite likely to yield less-than-optimal listening and client relationships.

Of course it’s also true that incredible communication skills may not fix a problem caused by other factors such as the economics of law practice. Those are issues for other blogs, but it seems pretty clear that incredible or at least reasonably strong communication skills are helpful in these situations.

Did Riskin capture the universally common situations that “lawyers hate to hear”?  Which ones would you add to his list?

 

Emotional intelligenceLegal communicationPeople skillsProfessional developmentProfessional responsibility

Talking means making mistakes (and that’s okay)

Sherry Turkle’s Reclaiming Conversation: The Power of Talk in a Digital Age has been on my reading list for a while now. I’m in the process of reading it and was stopped cold by something on page 54. Turkle is talking about “the flight from conversation.” The flight from conversation basically means kids these days—and yes, their parents too—don’t want to talk and will take active steps to avoid conversation.

https://www.flickr.com/photos/barry_b/143928531/in/photolist-dHEWp-fwfo9x-8eJS1L-cnr4r5-8eJV6J-8eFzux-aUbvWF-aUbviF-6BVufY-8eJZfS-8eFzdR-8eJUHQ-8eJUnQ-8eJYU9-8eJWc1-6Q3UVm-8eFyDk-aKPi8T-8eJXRU-8eFDq6-pR8z8t-8eJYcq-8eJTmN-8eJVHw-8eFCjV-8eFAEr-8eJU4y-8f54q4-8quZL3-8KdXtG-d5nAa3-geUjn4-DdJibk-4z1Yux-8YEJTM-bsC179-eYbj32-4PpL7E-6ebNVp-nCDLcE-dYT8p3-62dKpd-58hFYL-bUZK3m-9Zjt3J-nKVQU7-hfoTV3-dLnekA-9PAWD7-bNQjUp

I’m in the process of reading it and was stopped cold by something on page 54, a reference to a law student in the making.

This is a pretty big book, and in the first section  (which includes page 54) she goes to lengths to lay out her basic premise about “the flight from conversation.” This flight affects every facet of life and goes down very deep in the psyche. The most worrisome suggestion is that an intense digital life (at the expense of a social life) doesn’t just make people inefficient or unempathetic at that moment, but it actually stunts emotional growth.Turkle describes the work of Stanford psychologist Clifford Nass showing that spending too much time with social media and its “thumbs-up” emotional culture deprives frequent users of the ability to process more complex negative emotions. These people then become even less able to respond appropriately and quickly in real-life situations involving negative emotions. This diminishing skill set creates a downward cycle driving people to avoid difficult face-to-face situations and to seek out comfortable digital forms of communications.

Page 54 is part of this background. It caught my eye because it featured an aspiring law student. Turkle frames this anecdote as “[t]he desire for the edited life”:

A college senior doesn’t go to his professors’ office hours. He will correspond with his teachers only through email. The student explains that if he sees his professors in person, he could get something “wrong.” Ever since ninth grade, when his preparations to go to an Ivy League college began in earnest, he and his parents have worked on his getting everything “right.” .  . . Now he is three years through that Ivy education and hoping for law school. He is still trying to get things right. “When you talk in person,” he says, “you are likely to make a slip.”

He thinks his no-office-hours policy is a reasonable strategy. He tells me that our culture has “zero tolerance” for making mistakes. If politicians make “slips,” it haunts them throughout their careers. And usually they make these mistakes while they are talking. He says, “I feel as though everyone in my generation wants to write things out—I certainly do—because then I can check it over and make sure it is okay. I don’t want to say a wrong thing.”

I really wish I could reach out to this student. If he’s in law school now and if his first-year professors have used the Socratic method in any way, shape, or form, he has probably had a pretty rough transition. And whether he’s in law school or not, somehow he’s going to have to face a terrible realization: conflict and imperfection and mistakes and regret are

And whether he’s in law school or not, somehow and sometime he’s going to have to face a terrible realization: conflict and imperfection and mistakes and regret are all a reality, for all of us. You can run but you can’t hide. So he might as well build some strength now, ideally with a matching dose of empathy and humility, to deal with them as best he can.

I would also introduce him to the concept of a “growth mindset” as popularized by Carol Dweck of Stanford. A growth mindset is consistent with effort, mistakes, learning, and forward progress. What you are at the beginning of college/law school/a new job/anything is not your destiny.

The opposite is a fixed mindset, which is the concept your skills can be uncovered and revealed by testing but not truly built up or changed. The fixed mindset has a lot of disadvantages. One of them is a possible correlation with unethical conduct. A person’s desire to conceal a mistake might make that person dangerous. Being terrified about making a “slip” can lead to covering up mistakes, not seeking help, and in general turning potentially small problems into much worse.

This is just one reflection on the wealth of points in Turkle’s book. I’m still reading it! Throughout the summer I will be blogging about passages of interest, and perhaps even trying a Twitter chat at some point.

Read Jonathan Franzen’s New York Times review of Reclaiming Conversation here.

 

 

 

AdvocacyCross-cultural communicationGenderLegal communicationPeople skills

What do we hear when we hear vocal fry?

Tennessee professor Michael Higdon has followed up his 2009 Kansas Law Review piece on nonverbal persuasion with a thoughtful new essay,   “Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion.”

If you’re not familiar with vocal fry, check out this MSNBC video at minute 3:30 for an example drawn from law practice (“Um, I don’t really think that evidence is sufficient.”) The video briefly explores a few themes expanded upon in much greater depth in Professor Higdon’s piece: Is the problem with women using vocal patterns that diminish their appearance of competence? Or is the problem with managers and society scrutinizing and judging women harshly yet again? Higdon quotes Amanda Hess describing the joint perils of vocal fry and “upspeak”:

So we’re wrong when we raise our voices, and we’re wrong when we lower them.

Higdon takes this debate into the realm of law and the individual choices women law students and lawyers must make. He also places vocal fry into a larger framework of nonverbal persuasion including body language such as gestures, the use of space, the relationship to the speaking environment as well as any props or other instruments, physical appearance, the use of time, and other factors. “Vocalics” or what the speaker sounds like is the factor raising these questions.

Higdon and many others eschew the easy answer that women should stop vocal fry simply because it hurts others’ perception of them.

What is a female attorney to do? Does she scrupulously monitor and adjust her professional nonverbal behavior to match those qualities that social science tells her tend to be perceived more positively? Or does she ignore this research and what it might mean within her own career and instead follow her own preferences on how to present herself? Clearly, this essay cannot definitively answer that question—it is instead a personal question that must be answered by each person individually.

He points out that not all critiques of nonverbal behaviors are complicated: for example, lawyers should avoid pointing at their audience, especially when that audience consists of judges sitting as a court of law. But preferences about some nonverbal behaviors such as women’s vocal inflections raise harder questions of underlying bias. Higdon’s discussion reminded me of the discussion—how can this discussion still be happening?—whether women make a mistake by going to court in pants suits rather than skirts.

[W]hat one gains in the short term by presenting herself as in line with societal expectations can create problems in the long term by making it that much easier for everyone to ignore the sexism motivating those preferences.

Some would say the women lawyer’s identity shouldn’t matter. If she’s going to court where a judge has previously expressed disdain for women in pants suits and if she takes seriously her role as an advocate for the client, then she should grin and wear it (the skirt, that is). Likewise if society is saying vocal fry makes a woman sound incompetent and if a woman lawyer wants to represent clients effectively in said society, then stop with the vocal fry. As Higdon acknowledges, failure to comply can be damaging.

But he urges a deeper analysis that makes room for identity even as it contemplates audience:

[T]he preferences people have for certain behaviors are almost always motivated by something other than the behavior itself. Typically there is a connection in the audience member’s mind between that discrete behavior and something else—and it is the “something else” that requires more inquiry.

I recommend this article, especially as a companion to Higdon’s foundational article on nonverbal persuasion, previously reviewed here on the blog.

CollaborationEmotional intelligenceLaw firm managementLeadershipPeople skills

Is teamwork the same as collaboration?

 

Earlier this week Listen Like a Lawyer discussed Google’s teamwork study investigating the qualities of effective teams. In the post I mentioned that teamwork is so important in part because many cases are too complex for one person to manage. One bit of feedback on the post agreed that teamwork is “vital now for successful legal practices.”

Shortly thereafter I ran across this post from Lisa Needham at the Lawyerist, “Too Much Teamwork is Terrible.” The post ends with a plea:

Ban teamwork. Or at least reduce it drastically.

Both the Google article in praise of effective teams and the Lawyerist post against teams cite the same Harvard Business Review study concluding “the time spent by managers and employees on collaborative activities has ballooned by 50% or more.”

So if teamwork is so good, why is it so bad?

I think the real issue is the difference between formal teams and informal collaboration throughout an organization.

The Google study profiled in the New York Times seemed to focus on formal work groups—groups formed by assignment to address some specific task or role over time. These work groups seem analogous to a group of lawyers assigned to a client service team or a specific deal, trial, or other project.

The Harvard Business Review article on collaboration appears to be addressing a much broader phenomenon. It’s not just about the dynamics inside individual work groups assigned to discrete projects, but also about collaboration throughout an organization. Collaboration may take the form of sharing information, sharing social resources, or sharing one’s own time and energy—which, unlike the first two categories of collaboration, is a finite and exhaustible resource. These can happen within a formal team or in broader, more diffuse ways throughout an organization. A person who is willing to collaborate with others may be subject to “escalating citizenship” in which workers who want to help become so over-burdened that they become a burned-out bottleneck. To quote the article, the “virtuous cycle” of collaboration turns “vicious.”

I’m no Adam Grant, but if this distinction is correct, then the Google study and the Lawyerist post are also both correct. Complex long-term problems and strategic goals cannot be solved by lone-wolf lawyers. Therefore, lawyers working in formal teams can benefit from studying their group norms and seeking to collaborate most effectively. These types of teams should not be disbanded or reduced in scope.

On the other hand, managers should monitor the collaborative burdens across their organization to avoid inefficient, inequitable demands on “extra milers” (quoting the HBR article) being asked to collaborate beyond the scope of their roles.

Of course there is a challenging question in the middle of this: work groups formed not for direct legal service but for internal firm/agency management. In other words, firm committees. These groups can certainly benefit from studying dynamics in the spirit of the Google study. But the HBR study and Lisa Needham’s critique raise the question: what is the reward structure of the firm or organization, and is collaborative committee work compromising individuals’ capacity to participate in that reward structure?

For insight into this question, I would first recommend Helen Wan’s great novel The Partner Track.

On a more quantitative note, the HBR study suggests collecting and assessing data about who is doing what. It also suggests employee surveys and 360 feedback. To take a 50,000-foot view of these suggestions, it seems that one way to begin to address this question is by listening.