Category: Writing

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Listening to punctuation

Thanks to Julie Schrager, counsel and legal writing coach at Schiff Hardin, for this guest post. 

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I have been desperately trying to find a way to write about exclamation points. I grew up in a time when they were reserved for exclamations:

“Congratulations on winning that game!”

or

“That’s the reason he got that promotion!”

Lynne Truss, the author of Eats, Shoots, and Leaves, calls those uses the “Yes!”  and “Ah!” meanings of exclamation points.

And I was taught—starting in high school, then in college, law school, and in my first 20+ years of legal practice—that exclamation points had no role in business communications. Nothing we wrote was considered exciting or emotional, and exclamation points were viewed as showing too much emotion.

My teachers were in good company in disliking the exclamation point.  Fiction writers for centuries had condemned the use of exclamation points in fiction-writing. Both Mark Twain and F. Scott Fitzgerald are credited with saying that using an exclamation point is like laughing at your own joke.

But then I started sending and receiving texts. The old exclamation point rules didn’t apply there. And now I would say the rules—at least for certain legal correspondence—have changed.

This blog is about listening like a lawyer. Lawyers listen to things judges, clients, and other lawyers say out loud. But they also “listen” to writing:  opinions from judges, emails from opposing counsel and clients, and notes from colleagues. Some people read written communications out loud, but even if we don’t, we read and “hear” them in our head.

And I don’t “hear” exclamation points as exclamations anymore. I’ve started to listen to what I read from law students and new law grads and my college-age daughter. I’ve learned that exclamation points don’t say “Yes!” or “Ah!” anymore. Instead, they say, “I hear you” or “I’m not angry” or “We are in this together” or “Our relationship is on solid ground.”

Let me explain. My job involves regular email correspondence with associates at my law firm. It’s a unique position. I work as Schiff Hardin’s legal writing coach and read and comment on written work—memos, briefs, articles, web content, blog posts, and anything else summer associates or associates write. My interactions are almost exclusively with people under 35, and most are with people between 25 and 30. Sometimes associates reach out to me to ask me to review a piece of work—and sometimes I reach out to them.

This is how it goes: at the start of every week, I send around an email to all of the associates at the firm reminding them of my existence and asking if anyone would like to work together during the week. I ask them to fight against the idea that they should be able to figure out their jobs by themselves and do not need to ask anyone for help. I ask that they embrace a “growth mindset,” which holds that abilities are not fixed in space but can be developed with perseverance and hard work.

Exclamation points play an important role in our correspondence. They help young associates and summer associates win the fight against going it alone. Sometimes I’ll get a return email letting me know that the associate is writing a blog post and would like to send it my way. Often the email either starts with “Hi Julie!” or ends with “Thanks in advance!” The message is clear:  I am putting myself out there and am interested in working together.

Listening like a lawyer means matching the tone of the person speaking to you. So I respond with exclamation points of my own: “Thanks for reaching out!” or “Sounds good!” or “My pleasure!”

And I submit that the exclamation point has a new meaning and a legitimate role in business correspondence.

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Future trial lawyers, take heart

Listen Like a Lawyer will be delving into communication and writing in the next few posts. One reason this blog is generally dedicated to listening is that there are already many excellent legal-writing blogs available for the legal community. (For example: Forma Legalis, Lady Legal Writer, Law Prose, Legible,  and Ziff Blog, just to cite a few.) The writing-related posts here will connect to broad communication themes such as voice, empathy, and the relationship between senior and junior lawyers emerging from a lot of writing and talking as well as reading and listening.

Law professor Philip N. Meyer once did an unusual thing: he spent thirteen weeks observing a federal jury trial on a daily basis. Day after day throughout an entire summer, Meyer sat as a watcher and listener, taking in the spectacle of the trial and everything it entailed—from the painful moments to the surprisingly lighthearted. Leaving court late at night, he spied the lead defense lawyer sitting alone in a car in a remote parking lot with the windows rolled up, practicing his closing argument. This experience is just one of many inspirations for his book Storytelling for Lawyers (Oxford 2014).

Storytelling for Lawyers has neither a chapter on listening nor an index entry on listening. The book is about talking and writing—in other words, producing—narratives, much more than listening as such.  But Meyer mentions listening on page 2, talking about his work as a trial lawyer:

I learned to watch and listen to how my audience listened to me, and I would respond to their concerns, reshaping my stories to fit the shape of their imagining.

The book is about crafting stories that will resonate with audiences, whether at trial or in motions practice. So I recommend it.

But now let me get to the point of this post and why I titled it “Future trial lawyers, take heart.” Meyer teaches a variety of classes including doctrinal classes in criminal law and torts. In his chapter on voice and style, he begins with a reflection on what it’s like to grade law-school examinations:

As I grade these examinations, as best I can articulate it, the singular difference between the mediocre examination answers (C and below) and the middling to good examination answers (B-range grade) is primarily in the “substance”—whether students can identify the relevant issues and accurately articulate the relevant legal rules necessary to analyze the problem.

The distinction between the B exams and the A exams is, however, primarily in the “voice” and “style” of presentation. Voice and style, however, mean something much different in the context of law school examination taking than in the artful trial and appellate narratives that litigation attorneys construct in a factually far more complex and indeterminate world. (This, I think, speaks to why excellent litigation attorneys were often poor law school test takers.)

Meyer goes on to explain that the voice and style of top law school examinations “clamp[] down” on the facts, use clean organization, and employ the King’s English.  The student’s voice must be neutral and must not call attention to itself. “A” exams certainly don’t use colloquialism or humor. And they don’t explore the story embedded within the exam hypothetical in any depth. Meyer quotes a former student describing the events in an exam as “floating factoids.”

This is just one professor’s reflection on his experience grading exams, and he prefaces all of this by saying he grades holistically rather than with a detailed objective checklist. Still, it’s refreshingly transparent and I think every law student should read this—especially those just receiving their first round of law-school grades.

Law students who want to get into the courtroom and try cases may be disappointed that the skills distinguishing great trial lawyers maybe aren’t really tested in this (very popular and prevalent) type of law-school exam. That disconnect is the subject of discussion, critique, and reform, and more discussion, critique, and reform. The positive side here is that Meyer’s reflection invites law students to understand their grades as only loosely related (if there is much of any relationship) to how they might expect to perform in court.

Meyer’s reflection on the emasculated role of facts in many law school exams reminded me of an attorney’s recent #PracticeTuesday tweet. Bryan Gividen was responding to a call to bust law students’ myths of what it means to be a lawyer:

 

Working with the facts, crafting the story, developing a voice, testing whether the voice and the story resonate with an audience, all of these tasks are deeply connected with what it means to be a trial lawyer. The best appellate lawyers experiment with all of these things as well, but there are limits: the idea of “clamping down on the facts” by rigorously adhering to the record, and controlling one’s voice for the genre of the appellate brief and the audience of the appellate panel. Gividen draws this line when he identifies competitive appellate work as an exception to “practicing the facts.”

Any law student or lawyer who wants to develop their skills practicing the facts should benefit from studying Storytelling for Lawyers. Meyers concludes the book with a reflection on why law stories are different from stories told by journalists, filmmakers, and artists:

A final characteristic of law stories, especially the stories told in litigation practice, is that these stories are typically open or unfinished stories—their endings are strongly implied but not ordered or prescribed. It is up to a decision maker to write the ending, provide the closure and the coda that gives the story its meaning, and determine the outcome.

Legal storytelling has a rich literature, and anyone intrigued by this brief exploration of Meyer’s book would enjoy delving into the legal storytelling/applied legal storytelling scholarship. One gem is  Ruth Anne Robbins’ Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle L. Rev. 767 (2006). She argues that the client should not look to the judge as the hero and savior; the client should show how they are traversing a series of challenges and need the judge’s help in a mentoring role. The client is the real hero, a flawed hero but a hero nonetheless, seeking to carry on with their larger, bigger, more meaningful challenge. So the judge is not supposed to save the client; the client can save themself if they can just get through this lawsuit and carry on with their larger quest. Thus the opposing party is not the true antagonist but merely a “threshold guardian” impeding the client’s real quest.

Law students can take heart in this advice as well, in understanding their own personal story and quest. Law-school exams are basically a “threshold guardian.” They are a gatekeeping challenge the law student must face in the larger quest for something more meaningful.

 

 

 

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From “The Education of a Lawyer”

With bar results coming in from many states this week, it’s an opportune moment to recommend resources for newly minted lawyers. One good resource is Gary Muldoon’s book The Education of a Lawyer: Essential Skills and Uncommon Advice for Building a Successful Career. It has many good passages; here’s an anecdote on being receptive to feedback. Muldoon recounts how he was working on an article and sought out a prominent co-author:

The impact of the article would be greater if another person in the community was also on the byline, so I sought him out. He was receptive to the idea I was trumpeting and liked the article. Except for one sentence. He hated that sentence and would not allow his name to appear unless it was removed. The trouble was, it was easily the best sentence, in my mind, bringing the whole article together.

He could not be dissuaded, so I finally agreed, and the article appeared with both our names, minus that one sentence. No one was aware of the sentence that I so much enjoyed, so its absence was not noticed. The article had the effect I had hoped for.

Much of what we do in a law office is a team effort. In writing a brief or arguing a point at trial, I regularly solicit input from others in the office. If it’s my case, I’m responsible for the end product and have the final say, but is including their ideas important to make them feel like they have contributed? Should one care how they feel? Well, if I’m going to be asking for their ideas in the future, I better care. And yes, their comments, ideas, and changes are essential. You can do a good job on your own, but you need others to help bring out the best in your client’s case.

 

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Speed of speech < speed of thought

You could certainly accuse this blog of idealism about listening. In contrast to e-mail, for example, just go and talk to the person. Through listening to their words and observing their body language, you can pick up so much more subtle and complete information: How do they feel about the subject? What are their expectations and how can you adjust your own work in light of those expectations? How important is this to them, anyway?

A post on Medium last week— “What If We Listened as Well as We Read” —challenges that rosy picture. (Thanks to Ken Grady of Seytlines for bringing it to my attention.)

The downside of all that additional information you get from listening is . . . all that additional information you get from listening:

Before they can even open their mouth, we’ve already made up so many theories about who they are and what they’re going to deliver. And before they can even finish their sentence, we’ve already assumed how it will end, and chosen what we will say in response.

I have previously written about some of the cognitive biases that may arise in particular when listening is involved. See Listen Like a Lawyer blog posts here and here and here covering cognitive biases such as the well-known confirmation bias.

Although the Medium post by Rita Hedley does not delve into cognitive biases explicitly, she does point out one major reason listening is so vulnerable to bias. The reason distracting “theories” and assumptions arise, Hedley points out, is the difference in how fast we think and how fast other people can talk:

As humans, we process 125–250 words per minute as they are being communicated to us. But when we think, we form thoughts at 1000–3000 words per minute. So if we’re too busy thinking when someone is talking, chances are we’ve formulated a novel’s worth of ideas about the speaker before they can begin to validate any of it.

 

The differential between the speed of speech and the speed of thought (what we have the capacity to process) at the heart of many complaints about listening. It is the root cause of distraction. (You may have thought the iPhone is the root cause, but the iPhone is merely a vehicle for using the speech/thought differential in more self-gratifying ways than ever before possible.)

To use Daniel Kahneman’s framework, the great difference between the speed of thought and speed of speech is a space where “System 1” can roam. System 1 is the automatic, always-on system and also the one with all the cognitive biases (in lay terms, mental shortcuts). The more thoughtful “System 2” is where you find the careful “thinking slow” of his great book’s title,Thinking, Fast and Slow.

 

Whatever the task, the most effective communicators are able to use the speech/thought differential without detracting from how others perceive their listening. They achieve attentive listening while using their excess thought capacity to do the background work of lawyering. For experienced lawyers drawing on their wealth of expertise, a lawyer is not as likely to be swayed by the distractions Hedley is concerned about. A lawyer with experience in a certain practice area will pay more attention to facts than to how a client presents. And a lawyer who has been burned by incomplete information shared by clients will be slightly more careful even with a client who presents as credibly as George Washington (“I cannot tell a lie.”)

In the Medium post, Hedley suggests that online reading is a less complicated and more positive experience than listening. Part of this comes from the lack of information that would otherwise be supplied by face-to-face listening: Readers don’t have a lot of background information about the writer. They encounter the text in their own voice—the voice in their mind. They curiously anticipate where the text will go.

The suggestion of hearing the text in your mind’s own voice alludes to the idea that reading and thought proceed at the same pace. (Or at least far closer in pace than the ponderously slow rate of speech compared to the speed of thought.) Because there is no differential or less of a differential, perhaps System 1 has less room to work filling in gaps with cognitive biases.

I’m not sure it’s a fair comparison, looking at face-to-face conversation against light internet reading. Obviously conversations are complicated, inspiring numerous posts such as How to Politely Leave a Conversation. Light internet reading makes no similar claim on the person. All you have to do to leave the experience is click away. That act is a tiny data blip in a system of analytics, meaningful only when aggregated with other data and insignificant as an individual decision.

Not so with conversation. It makes a claim on the person; you are involved even if you may not want to be. Part of that claim is to try to see past the possible distortions your mind may be generating. Another part is to manage the speech-thought differential effectively. System 2’s willpower may be necessary for both tasks.

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Listening’s influence on writing

When we talk about communication, we are talking about four basic channels:

  • Listening
  • Speaking
  • Reading
  • Writing

Did you see a pattern in the color scheme here? The blue channels are receptive, and the red channels are productive. Listening and writing share the least in common, since listening is receptive and does not require literacy. Listening occurs in context with many additional cues, whereas writing must supply its own context.*

Yet my message here — for any lawyer or law student who wants to be a better legal writer, as well as legal writing professors — is that working on listening can contribute to stronger writing.

Listening at the outset

The social aspect of legal writing means listening is crucial. Whenever an writing assignment or project is delegated through spoken words, listening sets the stage for successful writing. In professional contexts such as law practice, “successful writing” may be defined in large part as whether the writing satisfies the expectations of the person giving the assignment. Effectively listening to that person as he or she gives the assignment is therefore an important aspect of effectively writing it.

Listen Like a Lawyer previously suggested a checklist for taking an assignment, itemizing the obvious points one needs to get out of such conversations as well as some of the more intuitive information to listen for. While listening at this stage doesn’t guarantee success, it’s hard to imagine how one could successfully complete the project without effectively listening first.

Listening to feedback

On the other end of the process — but still fundamentally social — another link between good listening and good writing is handling feedback. Effectively listening to feedback and incorporating it into future work is crucial for a writer’s growth and development. The legal writing scholarship offers a number of insights into how professors should give feedback to 1Ls and what challenges they are likely to face. These recommendations help students listen to what their professors/writing mentors have to say.

In law practice, however, attorneys most likely *are not* well trained to give writing feedback, either in writing or in person. Anyone ever receive back an entire page x-ed out and annotated with the lone word “awkward” or — my personal favorite — “revise”?

But maybe unskilled feedback is actually not the problem. The real key to feedback lies in the person receiving it, according to Douglas Stone and Sheila Heen in Thanks for the Feedback: The Science and Art of Receiving Feedback Well. These are the same folks who wrote Difficult Conversations, so you know they are onto something. Their book outlines the importance of feedback in every aspect of life and the most important reactive barriers to learning from feedback — namely reactions to the perceived truth of the feedback; reactions based on the relationship with the person giving the feedback, and reactions due to a threatened personal identity. (I am halfway through this book and have concluded EVERYONE SHOULD READ IT. Expect a longer blog post to follow about listening to feedback.)

“Listening” while writing?

While it’s pretty easy to see how listening contributes to the assignment and the feedback, what about the middle — the actual writing itself?  This part of writing isn’t so social. There’s no one to listen to.

Or maybe there is. Communications scholar Sara Lundsteen and others have suggested that part of good writing means having a good dialogue with oneself while creating. Being able to articulate what you’re writing about and why is part of a healthy writing process, writes Lundsteen in Listening: Its Impact at all Levels on Reading and Other Language Arts (1979). And being able to “hear” your own writing and revise it as needed are aspects of a healthy writing process as well. Here’s one amazing writer, Verlyn Klinkenborg, recommending that writers just listen to their own writing and notice how it sounds.

In contrast, stressing out about how much the professor or supervising lawyer is going to hate this piece of writing is not an effective “voice” to listen to when trying to write. Models of writing such as Betty Flowers’ “madman-architect-carpenter-judge” (widely promoted among lawyers by Bryan Garner) help writers hold the critical voice at bay, opening their thoughts to more constructive internal dialogue. Methods such as Professor Mary Beth Beazley’s concept of “private memos” (footnotes with the writer’s questions and notes) help manage a writer’s internal dialogue as well. Preserving one’s personal voice while learning the conventions of legal writing is the concern of scholars such as Andrea McCardle.

As the idea of internal dialogue demonstrates, “listening” is surprisingly difficult to define and inextricably intertwined with thinking. Here in the middle of the writing process, thinking as embodied and expressed in various ways — listening to your own internal voice, hearing the sound of your writing, reading your draft, speaking the words out loud, and writing some more — is what will make better writers and better writing.

***

*For support and a more in-depth discussion, writing professors should check out Irene Lurkis Clark’s article on LIstening and Writing.

I look forward to presenting about listening and writing at the upcoming 16th Biennial Conference of the Legal Writing Institute. Co-presenter Professor Tami Lefko will discuss listening, professionalism, and law school pedagogy.

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Listenability and readability

The essential difficulty with writing is “the curse of knowledge,” as Lisa Cron describes in her excellent book Wired for Story: The Writer’s Guide to Using Brain Science to Hook Readers from the Very First Sentence. The writer is cursed with the knowledge of what he or she is trying to say — knowledge that the reader by definition does not share. This curse manifests in at least two ways:

On the one hand, the writer is so familiar with his subject that he glosses over things the reader is utterly clueless about. On the other, it’s way too easy for the writer to get caught up in the minutiae of how things “really work” and lose sight of the story itself.

Cron then takes a bit of a cheap shot, although maybe it’s deserved:

This is something that, for some reason, lawyers seem particularly prone to.

(Digression: Forgive this one moment. Cron’s book is great, and particularly great for any law student or lawyer interested in storytelling.)

Composition scholars and legal writing scholars have been talking about this “curse of knowledge” in different words for a long time. In this post I’m drawing in particular on an article by Irene Lurkis Clark, Listening and Writing, 3 J. Basic Writing 81 (1981), available at http://wac.colostate.edu/jbw/v3n3/clark.pdf. Professor Lurkis Clark did some interesting work with listening and writing that helps explain why and how listening can help build better writing.

A different way to describe the writer’s curse of knowledge is the problem of “writer-based prose,” a term coined by famous communications scholar Linda Flowers. Writer-based prose is bad because it assumes the reader already knows what the writer is trying to say. This kind of prose is an “‘unretouched and under processed version’ of the writer’s own thought.” Students must learn to produce “reader-based prose,” which entails a “deliberate attempt” to reach the reader using “shared language and context.”

Beginning legal writers face the double challenge of learning to use legal concepts and language with precision *and* writing about those concepts for a reader. The reader for our purposes is not just any reader, but a legal reader. Extensive legal writing scholarship explores these challenges and how to address them. A few key methods include reading excellent writingfollowing structured self-editing processes, reflecting on the writing process and written product, and  obtaining/implementing meaningful feedback from peers, professors, supervising lawyers, and others.

Effective listening can help with effective writing too.

This is in part because language skills are integrated. Some scholars claim they are completely integrated (good reader = good writer = good listener = good speaker). Others take a more nuanced position, seeking to explore and define the boundaries between listening, reading, speaking, and writing. The extent of integration need not be resolved for listening to help a lawyer or law student wanting to write more effectively.

For example, reading your work out loud is something we are all told to do. Professor Lurkis Clark explored the composition theory behind this recommendation — namely that “listenability” and “readability” are closely related. Early work in listenability actually used readability scores to measure listenability, a method that has been questioned and refined since then.

Based on the connections between listenability and readability, Professor Lurkis Clark proposed that students listen to each other’s writing and share structured feedback. The idea is that beginning (non-legal) writers can build their reading comprehension skills and gain a stronger sense of audience. If students’ listening is stronger than their reading (which can be the case with unskilled writers), then critiques based on listening may be more advanced than those based on reading.

Lurkis Clark didn’t claim peer review by listening was a novel idea, but she sought to explore why it works and what it’s best suited to do. In this work and a subsequent experimental study of how evaluators scored text depending on whether they listened to it or read it, Professor Lurkis Clark concluded — not surprisingly — that listening is best for critiquing structure, content and audience appropriateness. She found a high correlation between scores assigned to a text by listeners and those assigned by readers of that same text. Taken in sum, her work validates the role of listening in what is, ideally, a virtuous spiral of developing communication skills:

One’s ability to listen . . . can enhance one’s ability to read, which, in turn, can enhance one’s ability to revise, which, finally, has significant implications for the production of coherent discourse.

 

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Better writing through listening

This post begins a series on listening and writing.

Being a better listener can help with being a better writer. There are broad, non-law-specific reasons this is true, supported in the general communications literature. And there are law-specific reasons as well.

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From the general literature: Listening is the foundation for speaking, which is the foundation for reading, which is the foundation for writing, writes Sara Lundsteen in Listening: Its Impact at All Levels on Reading and the Other Language Arts (1979). The initially crucial role of listening in this developmental process leads Lundsteen to posit: “Since listening is a foundation for writing, improving listening is likely to affect composition.”

Listening plays a role in writing skills in both an outward-facing and inward-facing way:

  • Listening in childhood builds vocabulary and the ability to generate complex sentences.
  • “Internal listening” is part of the writing process. Lundsteen gives the example of children talking to themselves when writing: “Let’s see, I’m going to write about a dog that ate a mean man.”

Problems with either type of listening could compromise the ability to generate strong writing. And strengths in these areas seem likely to correlate with strong writing.

The application to legal writing is pretty obvious. If a (legal) writer has a strong vocabulary and ability to generate complex sentences, that person’s (legal) writing is likely to be more advanced. Likewise, if a (legal) writer is able to engage a meaningful internal dialogue about writing (“now I’m going to address the other element”), the writing is likely to be stronger. While reading helps with all of the above — of course — reading alone seems insufficient. Listening to words in context and using those words in conversation with others, listening to how words are arranged in spoken sentences, and listening to one’s own ideas about what is worth communicating and how to make that happen — all of these forms of listening can enrich one’s writing.

The claim that better listening leads to better writing is difficult to prove, Lundsteen acknowledges. Several causes could make writing improvement difficult to discern: “complexity, the slow pace of such growth, and the imprecision in measurement of language arts skills.”

Yet this claim has an intuitive appeal, as she points out: “Not all problems [with language] are solved by using effective listening and reading, but it is doubtful that many are solved without help from these subskills.”