Effective listening is crucial to establishing rapport with clients, witnesses, and anyone, really. But effective listening also contributes to lawyers’ analysis, strategy, and future workload in several concrete ways.
Effective listening helps lawyers find the right narrative for the facts, avoid nasty surprises, and generate more work–in a good way. Read more in my guest post at the Legal Productivity blog here.
Lawyers have a duty to listen to their clients, as discussed in an earlier post. Lawyers also have a duty not to listen to certain information.
A lawyer may not listen to information provided by a person represented by counsel, as set forth in Model Rule of Professional Conduct 4.2. In short, communication with a represented person is a terrible idea! The rule itself says that in representing one client, a lawyer “shall not communicate about the subject of the representation” with another person represented by counsel. (Exceptions apply when the other person’s lawyer has consented, or when a court order or other law allows the communication.)
Lawyers may not circumvent the prohibition on communicating with represented parties by having non-lawyers take over the communication. Rule 8.4(a) defines professional misconduct to include violations done “through the acts of another.”
The prohibited acts of listening include completely passive listening as well as active questioning. In In re Howes, 940 P.2d 159 (N.M. 1997), the New Mexico Supreme Court upheld sanctions against a prosecutor for listening to several statements by a criminal defendant without his defense counsel’s knowledge. The prosecutor did not initiate the communications and never asked a question during any of these statements. He merely “listened to everything defendant had to say.”
The New Mexico Supreme Court roundly rejected the idea that this was not communication: “To argue that one does not violate [the precursor to Rule 4.2] if one does not ask questions or impart information borders on sophistry. People do not compromise their positions or waive their defenses by listening to an attorney; they do so by talking while the attorney listens.” The attorney, who was quoted by the court as lacking remorse for his actions, was publicly censured and ordered to pay costs.
Inappropriate listening could subject a lawyer to discipline under Rule 8.4 even if it does not involve communications with represented parties. Rule 8.4 defines professional misconduct to include conduct “involving dishonesty, fraud, deceit, or misrepresentation.”
For example, in In re Matter of Schwartz, 599 S.E.2d 184 (Ga. 2004), a lawyer accessed and listened to voicemails at the firm where he no longer worked. He went on to randomly delete some of them. The lawyer admitted violations and was suspended under a voluntary plan, which the Supreme Court of Georgia affirmed. The reasoning in the case did not separate out the wrongfulness of the act of listening to the voicemails from that of randomly deleting some of them. The court found suspension is generally appropriate when “a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal profession.” This case is among those listed in the ABA Annotations to Rule 8.4.
Effective listening has universal themes, such as the role of focused attention. But much of listening is also context-specific. Listening in a public meeting is obviously different than in a one-on-one conversation.
Trial lawyers face at least five distinct listening contexts. Each presents different listening opportunities and challenges. Listen Like a Lawyer is grateful to share this Q&A on listening contexts with trial lawyer, mediator, and trial-advocacy instructor Jay D. Brownstein.
LLL: Jay, thank you for your time. What do you think are the most important contexts that trial lawyers need to be thinking about when they think about their listening?
JDB: Generally speaking, there are several areas where trial lawyers need to effectively listen:
LLL: What are the listening challenges in conversing with a potential client?
JDB: The initial client interview can be especially challenging because the client and attorney have somewhat different goals. The client wants to tell her entire story, while the lawyer is trying to quickly determine if the client has a case worthy of further exploration.
In telling their stories, clients usually don’t know what facts are important. They frequently spend time telling you things that may have little legal significance, while leaving out truly important details. The lawyer must carefully listen to what the potential client is saying (or not saying), but also guide the conversation to facts important to the legal claim analysis.
So there is a constant tension between allowing the client to talk (and being professional and courteous), and quickly learning the necessary facts to make a case determination.
LLL: How does the listening task change when your potential client becomes your actual client?
JDB: Throughout a representation, it is critically important to maintain effective communication with your client, which always requires listening. Clients often try to tell us things that can be very important to a successful outcome of their case, although we may not always be receptive to it. For example, to effectively advocate pain and suffering in a personal injury case the trial lawyer needs to fully explore and come to understand how the client’s injuries have affected them.
In all cases, it is critically important to develop and maintain a relationship of trust with the client that can only occur through effective listening. If clients are to entrust us with their most important confidences—which can be crucial to achieving a successful result in their case—they must know that we are listening and trying to truly understand them and their circumstances.
LLL: I saw a statistic from one state’s court system that only 7 percent of cases go to trial. That means a lot of them settle, and the mediation process plays a major role in settlement. How can lawyers use listening to help their clients during mediation?
JDB: Over the past 10-15 years, mediation has evolved to become the primary means of resolving cases short of a jury trial. Available statistics suggest that a high percentage of mediated cases settle either at mediation or shortly thereafter. For example, the EEOC reports that in 2012 over 76% of its mediated cases settled within 100 days after mediation. For clients and their lawyers, mediation is often the last best chance for a certain resolution without putting their fates in the hands of strangers (juries and judges). Lawyers should not only prepare themselves for mediation as though preparing for trial (by reviewing all discovery, depositions, research on key legal issues, etc.), but they must also prepare their clients.
This preparation involves not only explaining the mediation process, but also listening and openly talking with clients about their expectations. It does little good to tell a client what she can expect in a mediation without also helping her to set goals and manage her own expectations. Listening plays a key role in this – you must first learn and understand how a client thinks before attempting to help modify that thinking and allow for the best chance of a successful mediation.
LLL: If the dispute lasts long enough, at some point, the lawyer will take and defend depositions and eventually examine witnesses at trial. What do you think are the keys to effective listening in the context of witness testimony?
JDB: Particularly in early years of practice, many lawyers prepare for depositions and trial testimony by developing extensive witness outlines covering numerous topics and containing detailed questions (sometimes including the expected answers). But as trial lawyers well know, testimony never goes exactly as planned or scripted, especially in the case of direct testimony. Learning to get the witness talking, listening to what the witness actually says (as opposed to what we expect or hope to hear), and following up to the actual responses, is critical to effective examination. This is something that, like many experienced practitioners, I am constantly aware of and seeking to improve upon.
The more an examination, even cross examination, is like a true conversation with each side listening and responding to the other, the more effective you can be at eliciting key points (good and bad) you want the jury (or judge on summary judgment) to hear and remember. All witnesses can surprise and frustrate a trial lawyer; the key is to listen and understand what you can and can’t do with a witness.
LLL: For the trial lawyer, a very important audience is the trial judge. How can lawyers use listening to better understand the trial judge?
JDB: All trial judges are busy with heavy case dockets, and appreciate brevity and clarity. On any given civil motions calendar there could be 40 to 50 cases. The judge needs to know what type of matter is before her (discovery motion, procedural issue, etc.), what she is being asked to do, and why. Judges will generally tell you what they need to understand or hear in order to issue a ruling.
The most skilled lawyers I have observed listen carefully to questions from the bench, whether directed to them or opposing counsel, and react by instantly tailoring their argument to the point or points the judge seems most interested in or confused by. Most importantly, the best lawyers don’t waste the court’s time with unnecessary argument. If a judge indicates, directly or indirectly, that they likely agree with you, acknowledge it and move on. If there is nothing further to say, stop talking and sit down.
LLL: When cases do go up on appeal, listening during oral argument is another intense experience. What are the listening challenges of oral argument, and how do you deal with them?
JDB: In appellate advocacy, the same principals apply but with even greater force. Accomplished appellate lawyers say that the best appellate arguments are like living-room conversations, except that the advocate’s window of opportunity to persuade is narrow and can easily be lost if the lawyer does not carefully listen and directly respond to questions.
Usually, a question from the bench is much more than an opportunity to expound on an issue or portion of your prepared argument. It tells you exactly which part of your argument is most troubling to the court or to the particular judge with the question. And it gives you the chance (in 60 or 90 seconds) to persuade that judge, and perhaps others, to your position.
Preparation is key, as you must anticipate and be ready to immediately give your best response to a myriad of issues and related questions from the bench. But absent insightful listening, the chance to persuade will be lost.
Jay, thanks so much for sharing your thoughts with Listen Like a Lawyer.
“Listening well is a gift.” Malcolm Gladwell explores the gift—and curse—of listening in this BBC profile of Vietnam consultant Konrad Kellen. The profile has some fascinating and sad insights into 20th-century politics and war. But the main point is to explore Konrad Kellen’s abiding gift as a listener. Although Kellen’s work was in public policy, his listening gift has something to teach lawyers as well: he listened without a biased ear, and he listened to all the relevant information in forming his analysis.
Kellen was effective as a listener primarily because he could set aside his biases. Gladwell describes Kellen’s rare ability to really understand field interviews with North Vietnamese during the Vietnam War. He didn’t filter the information through a bias of predicting U.S. victory, as did other policymakers who ultimately carried the day. This prevailing bias not only clouded policymakers’ understanding of the data but also blocked them from accepting what Kellen learned from really listening to the North Vietnamese.
Listening without bias is really crucial for good lawyering. Lawyers’ bias can interfere in many forms, from bias in favor of the client, to bias in favor of the status quo, to bias in favor of personal benefit or avoiding embarrassment or risk. Truly effective listening requires accurate and objective interpretation of the message being heard. In this way, effective listening is difficult to distinguish from critical thought itself.
Related to Kellen’s lack of bias was his ability to listen to all of the information and then synthesize it. He didn’t stop listening when he heard what supported the prevailing view, as Gladwell describes his work with extensive North Vietnamese interview transcripts. And Kellen was able to interpret seemingly conflicting statements together in a way that produced a deep understanding of the subjects’ real mindset toward the war.
Likewise, lawyers certainly should listen comprehensively, recognizing the relationships among discrete bits of data within the message. The press for efficiency and the lure of confirmation bias both can interfere with effective listening. Although lawyers must work efficiently, effective listening also means listening thoroughly and persistently, at least well enough and long enough to be able to hear conflicting information when it exists.
Gladwell ultimately suggests that Kellen’s effective listening was something of a curse. Gladwell points out the “great irony” that “[t]he better listener you are, the less people want to listen to you.”
This idea of listening as a curse seems less applicable to lawyers. Of course, knowing something that others can’t or won’t appreciate—whether gleaned through listening or otherwise—is difficult. Most lawyers will probably face that situation during their careers.
But as a sweeping statement, it does not seem to ring true that lawyers who listen well are less likely to be listened to. Indeed, just the opposite seems more likely in the small-group dynamics common in law practice. By deeply listening to the messages that clients, judges, mediators, opposing parties, witnesses, and others provide, lawyers can make themselves far more effective when they do speak up for their clients.
This photo was taken at the Georgia bar exam in July 2013—but not much has changed in five years. My own transition from the bar exam to law practice felt jarring. The solitude of studying and taking the exam gave way to a cacophony of interpersonal conversations. My listening “muscles” were atrophied, to say the […]
The word “listen” and its derivations appear only four times in the Model Rules of Professional Conduct and ABA Annotations. But the mandate to listen to clients pervades them. This post explores the implied affirmative duty to listen to clients. Future posts will explore lawyers’ duty to listen to non-clients and potential clients, and lawyers’ duty not to listen to certain people and information.
Lawyers must be competent, which under Rule 1.1 “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [5] to Rule 1.1 states that thoroughness and preparation include inquiry into the law and facts, as well as use of “methods and procedures meeting the standards of competent practitioners.” The word “listening” does not appear; the rule and comments do not specify the methodology for collecting information. Yet listening is a powerful way to glean knowledge about a matter, and sometimes may be the only way to glean certain knowledge (such as a credibility evaluation).
Rule 1.4 sets out the duty of communication, again without using the word “listening” but again implying its importance. Under Rule 1.4(a)(2), the lawyer shall “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Implicitly this means listening to the client about the client’s objectives. Comment [2] states that when the client must make a decision about the representation, the lawyer must “promptly consult with and secure the client’s consent . . . unless prior discussions have resolved what action the client wants the lawyer to take.”
Through its references to consultation and discussion, the rule establishes an implied duty to listen. This duty has substantive and procedural components.
The substantive aspect is that a lawyer must listen to what the client says regarding “the client’s objectives” as well as the means of accomplishing them. Listening is implicitly required because the lawyer cannot “reasonably consult” about these things unless the lawyer has, to some degree, listened to the client’s point of view.
And listening is not strictly limited to the literal meaning of what a client says. Under Rule 1.4(a)(5), the lawyer shall “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” The means of acquiring this knowledge is not constrained. It is a rare client who would directly state, “I expect you to assist me beyond the ethical rules and the law.” Thus the lawyer must listen to the client (and any other source) enough to know when the situation implies such expectations. [The rule on lawyer as advisor (Rule 2.1) and particularly Comment [5] are consistent with this implied duty to listen to the client carefully to understand what the client wants to do, and advise the client accordingly.]
The procedural aspect of listening in Rule 1.4 is that the listening obligation is reasonable but ongoing (to a degree). Focusing first on the “reasonable” qualifier in Rule 1.4 itself, the listening obligation is not eternal and unlimited. After airing out the client’s objectives and ideas on means for accomplishing them, the lawyer should be able to fulfill the duty of reasonable consultation without further listening.
And under comment [3], when the “exigency of the situation” leaves no time for consultation, the duty to listen gives way to the lawyer’s duty to make a reasonable decision and then keep the client informed.
But the lawyer’s duty to listen is not something the lawyer can finish and forget about. Under Rule 1.4(a)(4), the lawyer shall “promptly comply with reasonable requests for information.” This means the lawyer must monitor communications with the client to be able to comply promptly. The lawyer must be open to the client’s requests for information, listen to them, and heed them when they are reasonable.
Collectively, these references and annotations convey the lawyer’s obligation to listen to clients. Many of the implicit references to listening are presented in the form of how the lawyer will consult with or advise the client. Thus the purpose of the listening is not primarily for establishing empathy or building trust—although these are important and valuable side effects of effective listening. The implied duty to listen exists primarily to allow the lawyer to speak and to act on behalf of the client.
The author gratefully acknowledges the feedback of Professor Timothy P. Terrell of Emory Law School on an earlier draft of this post.
Listen Like a Lawyer 