Category: People skills

Not thinking like a lawyer

Jennifer RomigLeave a comment

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

Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser
Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser

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

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

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

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

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

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

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

Fitch-Hauser jumped to take this question:

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

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

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

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

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

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

Listening to the listening professors

Jennifer Romig7 Comments

This week I am excited for the opportunity to meet with two big names in the listening field, Debra L. Worthington and Margaret Fitch-Hauser. They are communication professors at Auburn University and, among many other papers, are co-authors of a 2012 textbook, Listening: Processes, Functions, and Competency.

0132288540Professor Worthington has studied persuasion and juror decision-making and, more broadly, the effects of different listening styles. One of her papers addresses whether verbal aggression corresponds with any particular listening style. Not surprisingly. verbal aggression is inversely correlated with a people-focused listening style. But it’s not strongly correlated with the other classic listening styles:

  • action listening (tendency to focus on errors and inconsistencies in a message, and how it relates to a task)
  • content listening (tendency to focus on claims and support)
  • time listening (tendency to focus on how much time a communication event takes, and to prefer hurried interactions)

(These listening styles were first identified by listening scholars Kittie Watson, Larry Barker, and James Weaver and have been explored in a variety of papers. How lawyers may use these different listening styles is an interesting topic for future blog posts.)

Professor Fitch-Hauser studies listening fidelity and other measures of listening. Listening fidelity is a useful concept for any professional: when a listener listens to a speaker/source, how similar are their perceptions of the “communication event” they both experienced? Listening fidelity means their perceptions are more congruent. Her work also has touched on listening styles and personality, such as her paper with Stephanie Lee Sargent and James B. Weaver III on “A Listening Styles Profile of the Type A Personality.”

In their textbook, Worthington and Fitch-Hauser survey the listening literature and acknowledge the difficulties of studying listening. It is so difficult to study because it is inherently a “hypothetical construct, something you know exists but you can’t physically see.” Models of listening provide insight into what is really happening in this hypothetical construct. Thus listening models help with identifying where listening success and failure may occur.

The Worthington Fitch-Hauser model of listening is “MATERRS”:

  • Mental stimulus – intentionally attending to a noise or stimulus
  • Awareness – beginning the mental sorting process, which can be adversely impacted by a high cognitive load such as multitasking
  • Translation – processing the message rationally, emotionally, or both
  • Evaluation – using existing frameworks for understanding to connect the message to one’s existing knowledge
  • Recall – storing the message in working memory and possibly long-term memory as well
  • Response – deciding how to respond
  • Staying connected & motivated – building relationships, evaluating and perhaps changing one’s own frameworks for understanding future listening events, maintaining motivation to listen, and challenging one’s own personal biases

The last aspect of the WFH listening model — staying connected and motivated — was particularly interesting to me. It represents listening as not just a one-time event but an overall life competency. That’s just one of many reasons I am excited to meet and learn from Professors Worthington and Fitch-Hauser.

 

 

 

Checklists for listening

Jennifer Romig2 Comments

The checklist is a surprisingly simple yet effective tool for improving performance in fields from aviation to construction to medicine to law. Checklists help professionals catch what Dr. Atul Gawande, the chief evangelist of checklists in the workplace, calls “the stupid stuff.”

Flickr/AJ Cann
Flickr/AJ Cann

Checklists also assist with collaborative work on large, complex projects. Complex challenges may not have a right answer, but project-management-style checklists help teams communicate and collaborate efficiently to handle uncertainty and forge a path forward.

I’ve written about how checklists help legal writers (here and here and here). Professor Kathleen Elliot Vinson of Suffolk Law developed an iPhone app with legal writing checklists (reviewed by Bob Ambrogi here). Checklists can help lawyers and law students listen more effectively as well.

For example, a listening checklist should be very useful for face-to-face meetings to discuss a new assignment. During a face-to-face meeting, forgetting to talk about a key topic would fall under Gawande’s definition of “stupid stuff.” Running down the checklist at the end of a meeting can help ensure key topics are covered. This process minimizes inefficient interruptions and follow-ups later. It also maximizes the value of the initial face-to-face time. Click here for a sample checklist for summer associates and legal interns.

Listening checklists could also be useful for client intake meetings, prep sessions such as deposition or mediation prep, feedback on assignments, and so on. Checklists for lawyering tasks are not a novel idea, which raises the question: is a “listening checklist” really that different from a regular checklist of relevant tasks?

Just as a pilot has numerous checklists in the flight manual for a variety of scenarios, a lawyer may have a listening checklist for handling meetings and a different kind of checklist for preparing an SEC filing, for example. The categorical name of the checklist doesn’t matter, but Gawande’s great work on checklists, The Checklist Manifesto, teaches that a long, cumbersome, everything-but-the-kitchen-sink checklist is not a particularly good one. Any clear checklist that encourages efficient, effective communication is a valuable checklist for lawyers.

Thanks to Professor Tami Lefko for feedback on this post.

A high-intensity listening workout

Jennifer Romig5 Comments
image
Courtesy Luke Lawreszuk/sprayedout.com

Tabata workouts — very short, incredibly intense workouts — are all the rage right now. In classic form, a Tabata workout is 20 seconds of high intensity work followed by 10 seconds off, repeated 8 times. The formula came exercise-science professor Izumi Tabata’s work with the Japanese speed-skating team. While an amateur athlete’s Tabata workout really doesn’t need to use this exact formula, what it does require is very intense bursts of physical activity and relatively shorter rests, repeatedly. The major benefit and the reason people are so excited is the excellent physiological results from these relatively short workouts.

Could there be such a thing as a Tabata workout for listening? In the spirit of exercise, here is a thought exercise on what such a listening workout might look like. The benefits are enticing: becoming a better listener through short intense practices rather than a long, slogging, perhaps inefficient effort.

Applying the methodology first requires some goal-setting. Intensely practicing the wrong thing doesn’t help. So here are a few thoughts on what a hypothetical Tabata workout might look like for lawyers, or any professional interested in an intense listening workout.

The “workout” below comprises five segments, with ten intense minutes per segment, to target some tough aspects of listening. If the average attention span is five minutes (and that is a 2013 number so perhaps too high), then these ten-minute segments really are intense, especially if done sequentially with breaks for an approximately one-hour workout. Thoughts on other, better “Tabata listening” segments are certainly welcome in the comments or by e-mail.

1. Being present

To do this segment, you need an in-person conversation partner to talk in detail about a topic for ten uninterrupted minutes. If you want to really “feel the burn” in this workout, the topic should be something you aren’t actually interested in, perhaps an esoteric hobby or ERISA (apologies to ERISA lawyers). Tell your conversation partner the premise and ask him or her to talk, talk, talk for those ten solid minutes.

Put away phone, pen, paper, and any other distractions. Maintain a comfortable level of eye contact. You’re not trying to remember what the person is saying, help the person, or chime in with your story. It is unfriendly and essentially impossible to use no body language at all, but try not to interject even with encouraging sounds like “um-hmm.”

The only two requirements are being present in the conversation, and making the conversation partner know you are present. If that person is distracted by you or thinks you are distracted, you failed. Start the segment over.

2. Remembering

This next segment engages the memory aspect of listening. Many models of listening such as Professor Judi Brownell’s HURIER model emphasize “remembering” as an integral part of effective listening. Think of Dorrie in the movie Finding Nemo: great person (if a person were an animated blue fish), but not a great listener (due to her lack of short-term memory).

The point of this segment is to strengthen your memory circuits when listening. You need something to listen to for another ten minutes. It could be live or recorded such as a TED talk, CLE webcast, or YouTube clip. During the ten minutes, listen intensely. Take no notes.

And then, as soon as time is up, write down everything you can remember from what you just heard, as close to verbatim as you can. Don’t delve into your own reactions or interpretations; those are not the right kind of memories for these purposes. In fact, responding with one’s own reaction may disguise poor listening caused by lack of attention or memory.

This is an exercise where the 20-10 Tabata proportion could be quite useful: After the ten minutes of talk time, spend a full five minutes trying to remember and write down what was said. Don’t do anything else during that five minutes even if you’re sure you’ve remembered everything you can possibly remember. Giving up too soon would shortchange the workout.

3. Active listening

The hallmark of active listening is accurately paraphrasing back the statements of your conversation partner to demonstrate that you are listening. For this segment, ask a conversation partner to talk for ten minutes about a topic of interest and to intentionally pause at natural stopping points. At each pause, paraphrase back what you just learned. Then add a simple encouraging cue such as “Go on.”

Even if you aren’t interested in the topic or have the most amazingly relevant story to share about what he or she just said, don’t do anything but paraphrase back and cue the conversation partner to keep speaking. At the end, ask that person for feedback, particularly whether he or she felt that you understood the information accurately.

4. Listening to a jerk

Many lawyers participate in conversations where the other person’s statements are wrong, misleading, frustrating, seemingly disingenuous, and perhaps even dangerous. Listening effectively while angry is one of the hardest things to do. Thus it is perfect for a Tabata workout.

Find a friend with whom you strongly disagree on a topic. Ask the friend, for purposes of this segment, to discuss that topic in very strong terms for ten minutes. Ideally the discussion will involve over-the-top statements and some ad hominem attacks.

The listening challenge is to steady yourself. Breathe. Hold your body language in place and try to keep it receptive to the conversation. Maintain eye contact and try not to use negative facial expressions such as pursed lips.

And use the same active-listening techniques practiced in the prior workout. That means rephrasing what you are hearing. Even if you disagree. Even if it’s a personal attack. Even if you would never voluntarily paraphrase such a thing in a litigation setting because of the transcript. The idea here is stressing the listening and emotional circuits to strengthen them.

5. Listening to yourself

You don’t need a conversation partner for this one. Sit quietly and comfortably with no distractions. Just listen to yourself for ten minutes. What thoughts and feelings you experiencing? Don’t stop and make a note. Just try to stay in tune with your own inner dialogue.

This is a form of mindfulness meditation. Jeena Cho and others are doing amazing work in promoting mindfulness among lawyers. Seeking constant input and distractions may serve as a kind of dopamine loop or numbing behavior, and therefore being mindful may be the most difficult workout of all. In fact, Jeena’s interview with Chris Bradley of the Lawyerist makes the same workout analogy suggested here: “Just like you can practice running a marathon by regularly running, you can build up your mental resilience by having a regular meditation practice.”

Conclusion: Physiologically and psychologically, real Tabata workouts work because they are intense. With this proposed “Tabata workout for listening,” your ears won’t be sore, but your brain may be exhausted — as well as stronger and more resilient for your next real-world listening challenge.

Listening and the art of the “callback”

Jennifer RomigLeave a comment

What do oral argument, marketing pitches, and improvisational theater have in common? This blog previously reviewed Steve Yastrow’s informative and entertaining book, Ditch the Pitch: The Art of Improvised Persuasion, and addressed how some of Yastrow’s recommended approaches could apply in the oral-argument setting.

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Philip Larson/Flickr

Some of these applications may be unexpected — but one particular tactic is something skilled oral advocates have been doing from time immemorial: the “callback,” or referring to something someone said earlier.

“Calling back,” or referring to a judge’s earlier question or comment is a classic tactic for oral argument, although lawyers don’t tend to use the term“callback” in this context. Whatever you call it, Yastrow’s explanations for why it works so well in business translate fairly well to the oral-argument context as well. (And apart from oral argument, the approaches in Ditch the Pitch certainly deserve consideration by lawyers developing their marketing pitches conversations.)

Callbacks demonstrate listening. And listening generates rewards, Yastrow writes, namely the rewards of your audience’s attention and interest.

Callbacks also help the audience understand the conversation. They make it more coherent: “[A] callback ties material together, making it easier to understand and engage with that material,” Yastrow writes. When the information is easier to understand, it feels more cohesive and resonant. It’s more believable.

Most subtly, callbacks involve the audience. In improvisational theater, callbacks help make the audience feel that they are “in on the joke.” They are “with” the cast and not part of the audience. Similarly, using a callback in oral argument involves the judge in the argument as more than a passive listener. When done right, mentioning a judge’s earlier comment or question can subtly suggest that the judge has already begin to take a few steps down the road toward accepting a certain position.

Yastrow’s advice for executing a callback strategy is helpful for oral advocates (and legal marketers) as well. The three basic steps, he writes, are discovering the opportunity for a callback, remembering it, and integrating it into the conversation.

Discovering the opportunity for a callback means being alert. Notice things that are important to the audience. Try to make a mental (or actual) list of “Things That Matter” to the audience. Advocates can prime themselves to be alert by their usual preparation steps such as studying precedent and the particular judges’ prior rulings. During the argument, advocates would certainly want to make a note of the dominant topics, i.e. Things That Matter to the judges.

Remembering the opportunity can be difficult because of the need to be engaged in the conversation itself. This is exceptionally true in oral argument, where time seems to distort itself and nerves interfere with simple tasks like taking a drink of water. (Anyone remember Tom Cruise struggling to take a sip in A Few Good Men?)

Yastrow recommends attaching visual images to the comments to help with recall. For example in a trade secrets case, if the judge asks whether other employees had access to the alleged trade secret, an advocate might visualize a large company meeting with all employees sitting in an auditorium, and the trade secret sitting on a platform on stage. This visual technique may sound a bit kooky, and it is explained fully in a very kooky and wonderful book, Moonwalking with Einstein by Joshua Foer. As Yastrow shows, it works in serious business situations. And it will work in oral argument as well. (Lawyers and law students, have you tried this?)

Lastly, the callback must be integrated into the conversation. There’s a ham-handed way to do this and an effective way. “Play it cool,” Yastrow advises; don’t say, “Hey, look at me, aren’t I clever, I just came up with a callback!” For advocates, one risk is over-playing their hand. Presenting the callback as a “gotcha” to the judge is probably worse than doing no callback at all.

To be effective, the callback must naturally fit in with the conversation itself. And that requires an overall mindset of alertness to the audience’s interests and needs, as well as a willingness to take the risk of improvising.

Bad listening is stronger than good

Jennifer Romig4 Comments

What’s more productive: targeting problems or building on strengths? Robert Sutton wrote in the Harvard Business Review Blog that “Bad Is Stronger Than Good.” This essentially means that eliminating the bad in the workplace – performance obstacles, bullying behavior, and even toxic people – is more effective than recognizing positive accomplishments and helping employees build on their strengths. Sutton’s post recounts the work of psychologists such as Roy Baumeister: “a huge pile of peer-reviewed studies” show that “negative information, experiences, and people have far deeper impact than positive ones.”

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Courtesy Jes/Flickr

Under this reasoning, eliminating bad listening habits should be more of a priority than celebrating the most enlightened listening practices. Damage done to team and client relations by bad listening is more significant than the benefits of recognizing and promoting listening excellence.

Thus perhaps this blog should use more scare tactics: 10 Ways to Fail as a Listener, and Therefore as a Lawyer?  5 Listening Mistakes No Decent Lawyer Should Make?

Although these titles are a bit dramatic, they do lead to an important and somewhat fun question: What actually *are* the worst listening practices?

Here are my opening nominations for the three worst. Please feel free to use the comments for sharing your own thoughts on lawyers’ worst listening practices.

1. Looking at one’s smartphone while supposedly listening.

I recently heard two complementary stories about how smartphones affect listening. In the first story, an interviewee checked his phone during the interview. The interviewer couldn’t help but wonder: “What’s so important that you need to look at your phone during my interview with you?”

In the second story, a law firm won a client’s business partly because none of the 20 firm lawyers in the room looked at a smartphone during their lengthy presentation to the client. The client expressed astonishment at the focused attention and lack of distraction in the room during that presentation.

2. Appearing to listen, then sending a confirmatory e-mail that is misleadingly incomplete or biased

Effective listening is a great way of building trust. That trust is broken when an ostensibly good listener follows up with a disappointingly incomplete recounting of the conversation. Or worse, a biased and self-serving recounting.

3. Listening with intent to start speaking at the first opportunity

In a scene from Pulp Fiction, Uma Thurman’s character asks John Travolta: “Do you listen or just wait to talk?” He says, “I wait to talk, but I’m trying to listen.” Several people have brought this scene to my attention since I started Listen Like a Lawyer. It is so memorable because it rings so true with people’s experience of frustrating conversations.

Negativity can be so . . . well, negative. Yet the idea that “bad is stronger than good” suggests that the most productive way for people and organizations to be better at listening is to stop being so bad at listening. 

Listen Like a Lawyer is grateful to Matt Homann for tweeting a link to Sutton’s post. Thanks to Matt for passing along another thought-provoking article with implications for listening.

 

 

Therapeutic jurisprudence and listening

Jennifer RomigLeave a comment

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

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

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

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

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

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

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

Rules for listening

Jennifer RomigLeave a comment

Every law student learns about default rules in contract law. A recent post from Matt Homann at the [non]billable hour shows how default rules can affect communication as well.

Here’s the scenario: A team (lawyer-to-lawyer or lawyer-to-client) meets to discuss a matter. After the meeting, “everyone seems to reach consensus on what to do next.” But later, it becomes painfully apparent that “some didn’t agree at all.”

Homann suggests the problem may be the way the team leader interprets silence.  If the leader assumes from silence that the client understands and agrees with everything just discussed, that leader may be in the midst of a real communication breakdown. Silence may and often does mean something very different: resigned acceptance, covert resistance, simmering resentment — or just lack of understanding.

The problem is that a default rule of interpreting silence as acceptance/agreement is often inaccurate. In law-and-economics terms, applying this rule leads to suboptimal outcomes. (Economics experts – please don’t get technical here. This is a loose metaphor.)

So instead of assuming that silence means agreement, Homann suggests the opposite. At the end of a meeting, ask everyone if they agree. In the absence of explicit verbal affirmation, assume they do not agree. Homann draws from Patrick Lencioni’s book The Advantage to suggest this method for both internal meetings and client meetings. The safest and best interpretation of silence is, as Homann writes, that silence means “no.”

What I particularly like about Homann’s post is that it shows a specific listening breakdown and a technique for addressing that breakdown. Listening is not a monolithic, intuitive talent that one is either good or bad at, forever. By studying listening successes and failures, we can derive and apply specific methods to improve.

For lawyers working in teams, what methods do you use to listen effectively in meetings? What about working with clients — how do you handle a client that doesn’t say much in a meeting?

Embracing interruptions

Jennifer Romig2 Comments

One of the rewarding aspects of starting this blog has been the opportunity to challenge preconceived notions about listening — both my own and others. This recent post from the Harvard Business Review, “Turn Your Next Interruption into an Opportunity,” is a great example of such a challenge.

The preconceived notion is that interruptions interfere with real work. The author, Douglas Conant, takes a more positive spin on interruptions: “Every ‘interruption’ offers an opportunity to lead impactfully, to set expectations, bring clarity to an issue, or infuse a problem with energy and insight.”

But he doesn’t stop there. More radically, “these thousands of little interruptions aren’t keeping you from the work, they are the work.” Conant encourages leaders to affirmatively seek out interruptions and to engage with both the issues they raise as well as the relationship dynamics they reveal.

Lawyers: can you embrace this positive spin on interruptions? How do you cope with interruptions?

 

Oral argument as an improvised conversation

Jennifer Romig2 Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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