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Just another balancing test?

What does it mean to think like a lawyer? On Simple Justice, criminal-defense lawyer Scott Greenfield took on this question for the benefit of a curious software engineer who asked. I recommend this post to new law students who also want to know, and to lawyers who are willing to reflect on what they do.

In the post, Greenfield talks a lot about logic, but it’s all wrapped up in and inseparable from the real-world experience of interacting in a complex situation with complex person, i.e. the client:

When someone walks into a lawyer’s office, they will tell their story. It’s usually a long story, convoluted and filled with extraneous details, all of which matter enormously to the story-teller because they suffered the details. It’s the lawyer’s job to focus, to sift through the details and figure out which are relevant (tends to make a fact more or less probable) and material (bears a logical connection to a fact in issue), and which are simply there, background noise of no consequence to whatever the core issue may be.

In this interaction, there will be conflicts in how the client sees the case and how the lawyer sees it: “To the lawyer, only the facts that affect the outcome matter. To the client, every detail matters.” Indeed, “[t]he client demands that the lawyer care about what matters to him.”  Different lawyers manage the conflict in different ways, some more effective than others:

Some lawyers prefer to handhold clients, catering to their sensitivities at the expense of addressing the relevant legal issues. Others prefer to guide clients to understand why some things matter and others, deeply important perhaps on an emotional level, are of no relevance at all on a legal level.

Greenfield ended the post by pointing out how lawyers must set aside the issues that interest them personally and focus on the client’s needs.  Recognizing and analyzing those issues comprise the “the hard work of a lawyer.”

After reading this post, I recognized how much it intertwined listening with the essential act of lawyering. From Listen Like a Lawyer’s Twitter account, I quickly tweeted the following:

 

And then the rest of the day, something kept bothering me.

Is it really a balance? (Just one more balancing test among so very many in legal doctrine and the lawyering-skills literature.)

Yes, it is a balance. Of course. In listening to a client and asking questions, most lawyers are going to show a mix — a balance — of empathy and analysis. Project too much empathy and the client will gain false hope and/or try to use the lawyer as a tool for “tangential beefs.” Project too much logic and the client will turn away.

This is an important point and one that some lawyers struggle with. For those who repeatedly gets entangled with unrealistic client expectations and, on the other hand, for those whose clients repeatedly become distant and wary, working on the balance may be worthwhile.

But it strikes me that Greenfield’s post was saying something more profound and difficult. He is not a fan of superficial thinking, and the idea of a simple balance isn’t exactly true to his point. 

What the post said is that lawyers shouldn’t be unempathetic. That’s a lot different than saying lawyers need to balance their logic with their empathy. Actually, he writes, “[t]hinking like a lawyer demands a dedication to harsh logic.” At the core of what we do, the law and its logic reign supreme. So really we are using empathy — and all our other communication tools — to help our clients understand the logic. 

We might need to listen more to do this. We might need to listen differently, or less (if the client is fixated on an irrelevant fact, as the post suggests). But we need to listen with discernment. By hearing their words, watching their faces and body language, using our experience and intelligence to notice what they aren’t saying, deftly steering the conversation to relevance, and generally bringing all of our listening skills to bear, we can be faithful to the law’s logic — while also performing the difficult task, articulated in Greenfield’s post, of guiding clients to understand.

Please share comments, particularly on this view of empathy and lawyering. It’s a conversation I hope to continue. 

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When All You Hear Is “No”

Active listening is an essential strategy for negotiating with difficult people, as discussed in this valuable post from At Counsel Table,

At Counsel Table

gtreHave you ever found yourself negotiating with a brick wall? Maybe not a wall, but an opponent, coworker, spouse or five-year old so entrenched in her position that it seems to take a herculean effort to procure even the slightest movement?

I’ve previously quoted from the slim but powerful text about negotiation strategy, Getting To Yes. One of the authors of that landmark, William Ury, subsequently wrote Getting Past No: Negotiating With Difficult People. I don’t know about you, but anyone who doesn’t go along with my program is clearly difficult.

Ury developed a five-step strategy for making progress with these . . . er . . . difficult people. The first step is to take your own emotions out of the equation; this will help prevent you from reacting without thinking, which can immediately stall or even end productive negotiations. Ury calls this Going to the…

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Images of Listening

The listening process is not exactly a linear formula, but it does have some distinct phases worth reflecting on. Check out this Haiku Deck presentation on listening for lawyers: http://www.haikudeck.com/p/u7AooSuhNL

It may seem ironic to present ideas about listening with intense visual images. (“Full screen view” is recommended.) But just imagine how one might listen to the speaker’s ideas while looking at striking images, as opposed to half-listening while reading a list of bullet points.

More information on the Haiku Deck app can be found on the Legal Productivity blog here.

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Celebrating National Punctuation Day by listening to punctuation

Listening to what you’ve written can be immensely helpful in revising and editing your work. “Read it out loud” is a time-tested technique for self-editing.  As Forbes magazine proclaimed, “To write like a human, read your work out loud.” 

Listening to your own writing can help with all stages of the writing process:

  • analysis (recognizing false contrasts, for example)
  • research (realizing that a statement really needs support)
  • organization (noticing that sequential paragraphs or sentences are jumping around between topics)
  • sentence length (running out of air before finishing a sentence)
  • grammar (frowning while reading because it’s now apparent that the subject and verb don’t actually agree)
  • word choice (hearing words that just sound wrong, and maybe brainstorming good alternatives out loud)

But listening can be a bit of a faux ami when it comes to punctuation. Particularly, please do not subscribe to the rule that you insert a comma wherever you pause in speech. As the University of North Carolina Writing Center points out in a comprehensive handout on commas, it’s a myth that you should insert a comma wherever you pause. Different people pause in different places.

The most common error along these lines is, I think, the desire to put a comma after but: “But, the court ultimately reversed and remanded.” I once watched someone read a sentence like this and respond as follows: “That comma makes me physically ill.”

If you are listening to your own work and really, really want to mimic the rhythm of speech by inserting a strong pause . . . consider the ellipses, as Roy Peter Clark recommends in The Glamour of Grammar.  But he also points out that the ellipses to signal a pause is more a tool of narrative writing and not so commonly spotted in the world of formal reports. He didn’t specifically mention legal writing, but he might as well have. The ellipses could perhaps work well in legal blogs and other friendly, outward-facing writing–as well as sarcastic writing like this response to a cease-and-desist.

When lawyers want to slow down the way the writing sounds but maintain a very formal tone, there’s always the old faithful, very basic punctuation mark that does a lot of work but gets under-appreciated for its rhetorical effect. Yes. The period.

EthicsLaw practiceLegal communicationLegal skillsPeople skills

Listening to children: practice pointers from an expert

Listen Like a Lawyer welcomes guest blogger Karen Worthington, a writer, consultant and children’s policy attorney.

Writer, consultant, and children's policy attorney Karen Worthington

Karen Worthington

A recent verbal exchange with my five-year-old ended like this:

Impatient mother: “We are going to be late for practice. I told you three times to pack your snack and water. Didn’t you hear me?”

Unflappable daughter: “I heard you, I just didn’t listen.”

My daughter’s statement both captures why miscommunication is so frequent in our lives and illustrates a key difference in how young children and adults communicate. Young children live in a world of concrete concepts. To them, to “hear” is to know there is a sound going on around them. To “listen” is to accept and process information that is being conveyed to them. Listening and hearing are two distinct actions and listening is not always a subset of hearing.

Truly listening to children is one of two things attorneys must do to effectively work with child clients. The other is understanding child development. Although child development is not a class found in any law school, lawyers working with children and families cannot effectively communicate with or build a case involving a child without understanding where that child is developmentally and how that impacts the issues in the case.

What is a child?

In the legal world, a child is a person who is not yet a legal adult. For most purposes, the age of adulthood is eighteen, which means that a “child” could be seven days or seventeen years old. Because of the wide range of developmental and chronological ages and abilities falling under the legal umbrella of “child,” when discussing how to work with children it is helpful to group children by developmental ability.

The developmental stages of childhood are generally categorized as infancy, toddlerhood, early childhood (ages 3-6), middle childhood (ages 7-11) and adolescence. While the exact ages and stages may vary among developmental experts, the fact remains that the skills and approach needed to listen to a child vary according to the child’s developmental age and stage. Each stage includes social, emotional, cognitive, motor and other changes that affect how a child interacts with (i.e. communicates with) his or her world. Furthermore, developmental theory provides only a framework for working with children. Each child is unique, developmental stages are not linear, and a child’s cognitive abilities may be affected by trauma, fear, hunger, excitement, tiredness, medications, hormonal changes, the setting in which the conversation takes place, and many other factors.

How to listen to children

As with any other client (and perhaps more so than most clients), attorneys need to spend time with and get to know their child clients. Listening to your child client in different settings at different times will teach you how to best communicate with that child. A preverbal infant is just as capable of carrying on a conversation as a 15-year-old, if you know how to “speak” and “listen” in the infant’s “language.” Following this post is a list of resources to help lawyers communicate with children of different ages.

There are some general guidelines that apply across the stages of childhood. First, establishing rapport with a child is essential in a way that it is not with adults. Most of the time, adult clients seek your services because they want your help with a problem and they understand the attorney-client relationship. In contrast, most child clients encounter you because of bad things that have happened in their lives and almost always, they did not seek you out–you were assigned to work with them by some other adult. Even when you represent youth accused of breaking the law, which is most analogous to a situation in which you would encounter an adult client, the youth’s perception of your role is not likely to be similar to an adult’s perception of it.

Connect with children

Rapport is essential because broadly speaking, young children will want to be agreeable and please you and adolescents are likely to distrust you. Therefore, young children need to be comfortable enough with you to disagree or correct you rather than always giving the answer they think you want to hear. Older youth will need to be comfortable enough to share relevant information with you and not just tell you what they think you would want to or should know. All ages need to feel comfortable enough with you to share information they may feel is embarrassing or shameful.

Understand the child in context

A second general guideline is to speak the child’s “language.” Learning the child’s language comes in part from understanding child development (such as when children can understand abstract concepts, compound sentences, time, space and size comparisons, etc.) and in part from understanding the world in which the child lives–physically, culturally, socially and emotionally.

To understand a child in the context of her environment you need to see the child in her home or school and you probably need to observe interactions with important people such as parents, siblings or peers. You also need to be able to talk about what is important to the child. If you work with tweens and adolescents, read some magazines targeted to that age group, find out what music is popular with the teen and his friends and listen to it. Know something about what the youth is interested in, whether it is college basketball, pro football, the latest dance craze or the newest viral video. You probably can’t bill for watching music videos, but the improved ability to relate to your client is a huge payoff.

Don’t just talk; do something

A third general guideline applicable to most youth is to interact with them rather than interrogate them. Instead of a traditional one-on-one conversation which, for lawyers, often includes a desk and taking notes, it is best to engage in an activity with a child. For young children that might be coloring or playing with trucks or dolls, for older youth it might be playing a card game that doesn’t require much concentration, swinging at the park or walking around the neighborhood.

Having something to focus on other than an adult asking questions tends to make a child more comfortable. For many children, the only time they sit and talk to an adult without doing something else is when they are in trouble. Because of the setting in which you talk with a child, you may not be able to take notes, so you need finely honed listening skills.

Be honest; be real

A fourth general guideline is to be genuine and keep your word. Children have a sixth sense for insincerity and a finely attuned BS-o-meter. Develop rapport but still be yourself. Maintain boundaries. You are the responsible adult in a relationship where there is a power imbalance. You are their lawyer not their friend. Don’t overpromise and always follow up. Be clear and do what you say you will. Most of the time children have lawyers because other adults have failed them. Do not be another adult who lets them down.

Listen with your heart as well as your ears

A final piece of advice is be prepared to be surprised. When we allow ourselves to listen to children, we are likely to be surprised by their wisdom. Children’s insights and observation can be biting in their honesty. Appreciate the profundity in simple statements such as “I heard you but I didn’t listen to you.”

Resources

Click on the resource title to open the URL.

ABA training video, “Interviewing the Child Client: Approaches and Techniques for a Successful Interview 

ABA Center on Children and the Law

CASA of Arizona online training segment, “Interviewing Children”

National CASA article excerpt, “Interviewing Children” (PDF)

NJDC training module “Talking to Teens in the Justice System: Strategies for Interviewing Adolescent Defendants, Witnesses, and Victims”

“Handbook on Questioning Children: A Linguistic Perspective, 3rd Edition,” by Anne Graffam Walker, et al, published by the ABA Center on Children and the Law (July 2013)

Author bio

Karen Worthington is a writer, consultant and children’s policy attorney who has spent the last 19 years working to improve children’s lives as a policy wonk, educator, author, child law and policy center director, nonprofit leader, legislative advocate and children’s law expert. Her consulting website is http://www.karenworthington.com and her writing website is http://www.lightningboltwriting.com.

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Guest post on Legal Productivity: 5 Benefits of Effective Listening

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.

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The Lawyer’s Ethical Duty Not to Listen

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.

Do not listen to a person represented by another lawyer.

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.)

Listening includes having other people listen.

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.”

Listening is still listening, even without asking a single question.

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.

Unethical listening isn’t limited to dealing with represented parties.

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.

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Effective Listening During Callback Interviews

Last week Listen Like a Lawyer explored the process of effective listening during a job interview from preparation to thank-you note. Callbacks present some special listening opportunities and challenges. Here are some key points to keep in mind about effective listening during the callback process, courtesy of the Assistant Dean for Career Development at the University of Colorado Law School, Todd Rogers.

rogers_todd

  • Understand that the callback interview begins the moment the interview invitation is extended. If the invitation comes by phone be prepared to listen carefully to the options for interview date and time, and respond as quickly as you can—preferably on the spot. Also, be sure to ask all the relevant logistical questions, such as whom to ask for once you arrive at the office, and the identities of all the attorneys with whom you’ll meet.
  • If your invitation comes by email, consider calling to confirm your interest and to schedule a date and time. This simple gesture demonstrates your enthusiasm and gives you another opportunity to listen and learn potentially useful information.
  • When you arrive on site, realize that everyone you meet should be considered part of the interview process. Afford the same respect, and listening attention, to attorneys and support staff alike.
  • As a way to settle your nerves once the formal interviews begin, remember that you’ve already impressed the firm enough to make the initial cut. By relaxing, you will promote a “less interrogation, more conversation” atmosphere. The attorneys with whom you meet are more likely to form a favorable impression of candidates who project confidence and express genuine interest in their work.
  • A big part of projecting genuine interest is to ask good questions. Examples include questions that focus on the summer program and the attorneys’ experiences at the firm; avoid those involving money, hours worked, and distant events such as partnership decisions. Listen intently to the answers and ask meaningful follow-up questions.
  • You’ll also have an opportunity to demonstrate that you listened carefully during the initial interview. You can refer to tidbits of information you learned in the initial interview and asked follow-up questions, such as, “When I interviewed on campus, we spent a few minutes discussing the firm’s summer program.  Can you tell me more about how work is assigned to summer associates?”
  • As you listen to the answers, take mental notes. You’ll tap into this reserve later, as you write thank-you notes that incorporate details of the interviews, and as you weigh the pros of cons of employment offers.

Many thanks to Assistant Dean Rogers for sharing these thoughts. And good luck to all the law students handling interviews at every stage.

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Validating others by listening

Today the Farnam Street blog—which has a fascinating e-mail newsletter I highly recommend subscribing to—collected and released its top posts for July. One of them was “Ten Techniques for Building Quick Rapport with Anyone.” The post is a summary and review of Robin Dreeke’s book It’s Not All About Me: The Top Ten Techniques for Building Quick Rapport with Anyone.

This book looks like something this blog could explore again more fully in the future. For now, here’s what Farnam Street had to say about the book’s coverage of listening. It’s one of the best ways to build rapport by validating the person you’re talking to:

Just listening to someone can produce amazing results. Where we run into problems is keeping our own thoughts, ideas, and stories out of the conversation. [Quoting the book:] “True validation coupled with ego suspension means that you have no story to offer, that you are there simply to hear theirs.” And there is another benefit. When the focus is on the other person and we’re not anxious to tell our own story, we also tend to remember the details. We’re mindful.