Category: Trial advocacy

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

Jennifer RomigLeave a comment

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

Lawyer as listener

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

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

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

Listening in the criminal-justice system

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

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

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

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

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

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

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

Second-chair listening

Jennifer Romig2 Comments

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

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Courtesy Flickr/Independent Man

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

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

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

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

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

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

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

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

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

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

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