Every time a lawyer communications, that lawyer must choose not only what to say but how to say it—in person, phone, e-mail, or something else.
Speaking and listening obviously take longer and may seem inefficient. Writing (such as e-mail) can reach a group of people instantly and allow them to access the information at a convenient time, also creating a record all parties can use and refer to later.
Courtesy Flickr/Horia Varlan/CC by 2.0
But e-mail just isn’t as accurate at conveying meaning.* Anyone who has had an e-mail misunderstanding has experienced what the academic research shows:
Because of the paralinguistic cues in voice, such as intonation, cadence, and amplitude, observers who hear communicators guess their actual thoughts and feelings more accurately than observers who read the exact same words in text.
In that study, MBA students prepared pitches on why they should be hired, and then delivered them either orally or in writing. The results were pronounced:
[E]valuators rated a candidate as more competent, thoughtful, and intelligent when they heard a pitch rather than read it and, as a result, had a more favorable impression of the candidate and were more interested in hiring the candidate.
Why is this? It has to do with cues provided by the voice, and heard by the listener—cues that are lacking in writing. The study summed up the effect:
The words that come out of a person’s mouth convey the presence of a thoughtful mind more clearly than the words typed by a person’s hands—even when those words are identical. Across five experiments, evaluators who listened to job pitches were consistently more interested in hiring the candidates than were evaluators who read identical pitches. A person’s voice communicates not only the content of his or her thinking, but also the humanlike capacity for thinking.
The effect persisted whether the written material was prepared for purposes of reading or speaking. It persisted in one form or another for “evaluators” drawn from a general audience at a Chicago museum as well as from recruiters at Fortune 500 companies. The study also asked trained actors to deliver the pitches in another sub-set of the study to glean whether professional voice skills were the deciding factor. They weren’t.
In an article on the study—”The Mouth Is Mightier than the Pen”—the New York Times pointed out that study authors did not control for the quality of the writing itself. Study author Dr. Epley told the Times he assumed the MBA students were “better-than-average” writers, given that they were enrolled at a top business school. But the study’s findings turned out to be greatly surprising to the students themselves: responses to a survey question showed they did not expect their spoken pitches to be so much more powerful in conveying intellect.
The study does not indicate it would be “impossible for a talented writer to overcome the limitations of text alone.” Rather, the study participants did not predict or expect that voice would provide such an advantage, and thus in their written pitches did not spontaneously try to overcome any deficit from that communication medium.
The study has a number of implications, for lawyers and anyone who conducts business in a variety of media—or anyone who cares about making an impression about their intellect:
[T]ext-based communications may make individuals sound less intelligent and employable than when the same information is communicated orally. The findings imply that old-fashioned phone conversations or in-person visits may be more effective when trying to impress a prospective employer or, perhaps, close a deal.
Studying for the bar exam. No one enjoys it and no one wants to repeat the experience. My question for this post is relevant to anyone taking a bar-exam prep class live or through video or audio: How do bar-exam students listen most effectively in studying for the bar? This post explores how bar takers can listen with power—bar-exam-taking power.
But you can take some of your own steps before a lecture. Advance prep could provide more of a framework for listening to the bar lecture:
Look at a bar study guide for a quick outline of the topic.
Look at the table of contents of a case book on the topic.
If the topic is statutory, skim the statutory outline for that area of law your state.
Make diagrams of the topic or find a diagram you can use to help think about what you’re going to hear. Recopying the diagram in your own hand will be more powerful than just looking at diagrams.
Google the topic and find some real-world scenarios. Learning how this area of law works in the world could motive more focused listening.
Look at a few bar-exam questions that ask questions on the topic. Not only could this build some knowledge by showing you how the issues might arise in a quasi-real-world situation, but it could also tap into a pretty powerful motivator of attention: FEAR.
Hearing/Stimulus and Awareness
Listening is not the same thing as hearing, but hearing is necessary to listening. Therefore the most obvious thing to say here is to make sure you are hearing and paying attention to the lecture. Don’t half-listen during the bar-exam lectures, assuming you’ll go over it in your notes later. Giving only “continuous partial attention” to the scintillating lecture on commercial paper means you’re already introducing an inefficiency into your bar preparation.
People may prefer to learn a certain way, but that does not mean they actually do learn better that way; critics say the idea of “learning styles” is intuitively appealing but lacking in reliable proof. That controversy can’t be resolved here, and it doesn’t need to be. Just don’t use the idea of learning styles as an excuse to listen with less than full attention. Test-takers should take full advantage of different ways to learn from traditional lectures to charting to flash cards to a surprising option you can read about at the end of this post.
And one more note about the initial hearing part: I really don’t think it will work to listen to bar-prep audio recordings on a speeded-up pace. (Do experts recommend this idea?) It seems you want some pauses in between the information to give your mind time to actually process it. Those pauses may frustrate the bored or distracted mind (more on this in a future post). But your goal in studying for the bar is not to be entertained every second. It’s to pass the d*mn bar.
The prevalent models of the listening process all include a variety of hidden intellectual functions such as interpreting, translating, understanding, and evaluating.
One trick to true understanding is knowing whether you in fact understand. But the Dunning-Kruger effect seems alive and well across every domain—meaning unprepared bar takers may be not only unprepared but also unable to know just how unprepared they are.
Stated more constructively, try to monitor your own understanding while listening, and afterwards via practice exams. Lots of them. In a perfect world, we all understand everything the first time it passes our ears. But it’s not a perfect world, and the next best thing is to know something is important and also to know you’re not getting it. You might know it right then during the lecture, or later after bombing a practice exam. But then you can do something about the lack of understanding.
Remembering/Recall
Remembering (at least for the short term) is part of listening, and part of overall cognitive functioning. And remembering details—especially details that aren’t inherently interesting—is difficult.
To prepare for a high-pressure memorization test, you want to get the information “set” in your long-term memory for use on the bar. This doesn’t mean remembering it forever, but long-term memory is the right term. Short-term or working memory only holds information for about 30 seconds tops, and that’s not good enough.
To pass information to long-term memory, you have to bring it up and use it and repeatedly pass it back through your working memory. That means you can expect to do a lot of flash cards, practice exams, and other active study techniques to help this process. Active studying supplements the listening process and reinforces the learning.
But is there anything bar students can do at the moment of listening to make the most of that listening moment, maximizing their memory for later?
Here the power of the eye may help supplement the power of the ear. As you listen to the lecture, try diagramming what you learn. Make a visual. Make a chart. Draw a picture of each element of the test. Imagine a ridiculous scenario with a clown using commercial paper in some memorable fashion.
Closely related to this process of remembering is how you take notes. Let me say this now and be very clear:
Do not take notes on your laptop.
It is growing clearer and clearer (like here and here and here) that students remember material better when they take notes by hand, as in using handwriting on a piece of paper. This is hard pill for many law students to swallow because it cuts against years of habit. Maybe a more realistic recommendation is this: Don’t take notes on your laptop by default, just because you may have done so throughout law school. There is pretty good evidence that taking notes by hand is at least as good if not better than taking notes on a laptop. Try it. Maybe you’ll like it.
Responding
Bar lectures are not a deep Socratic exploration of legal theory and jurisprudence. You don’t need to respond to a bar-exam lecture by lining up to pose some theoretical responses and analytical challenges to the material. (Really, please don’t.) As many bar-exam prep experts advise: nobody gets a special reward for an “A” on the bar exam.
Likewise, bar lectures do not require an emotional, empathetic, caring reaction. Really, it may be the most antisocial learning environments of all time.
What, then, is the proper response for a listener?
The response is the studying. The flash cards. The practice essays. Clarification and deeper study of certain problem areas. Eventually, the response is what you do with the information on the exam.
And if you really need a change of pace, put in the earbuds and dance. Or at least think about dancing while taking in these “Bar Exam Study Songs.” (HT Lee Burgess of Bar Exam Toolbox for the review.) It’s an unexpected and unorthodox way to incorporate more listening into your bar-exam study routine—but why not?
Bar-exam prep is a well-developed industry of its own, with many highly experienced and skillful tutors and prep resources. I’d love to hear from bar-exam prep experts with their advice on listening during the prep process. And for bar-exam takers, what types of listening techniques have worked or not worked? What would you recommend to those studying right now?
‘Tis the season of advice for 0Ls, meaning those about to enter law school this fall. While reading Scott Turow’s One L and banking some “me” time are both great, 0Ls might want to think about their listening.
I once heard a law professor say that starting law school is like learning Chinese by being dropped from an airplane into a community where only Chinese is spoken. Law-school prep classes, boot camps, and online programs have sprung up to help students make the transition. Perhaps a law-school prep course is a little bit like reading a grammar guide and a few key survival-oriented sentences before the big drop.
Courtesy Flickr/Steven Depolo/CC by SA 2.0
But there are ways to prep for law school without paying a fee, such as “by visiting your local Barnes and Noble.”Plain English for Lawyers by Richard Wydick and Getting to Maybe by Richard Fischl and Jeremy Paul are often recommended. These books are great, and as a legal-writing professor when I’m not blogging, I especially recommend Plain English for Lawyers. I would also add Barry Friedman and John Goldberg’s Open Book as a new and popular contender in the law-exam-prep market.
But the skills these books ultimately focus on—writing legal documents and exam questions—are partially the artifacts of earlier skills in reading and listening. What about targeted prep for these skills?
For listening, I’m not aware of a specific book focusing on listening for pre-law students. (Hmmm….)
If there were such a book, what would it cover? Here’s a thought experiment on what pre-law students could do the summer before law school to enhance their listening:
Acclimate to the pace of a law school class.
Incoming law students could search for a few lectures on YouTube and sample what they really sound like and how they move. Socratic interchanges and professorial pauses may be new experiences. Class can move slowly or very, very fast.
Some students may want to work on smartphone etiquette and attentiveness so as to avoid distractions during class even when it seems to move slowly. This in turn is good practice for avoiding smartphone distractions during meetings and interviews with clients and others as a practicing lawyer. Even if a student loses no actual information by looking at a smartphone during class, that student may be sacrificing the speaker’s good impression.
Integrate reading and listening on a particular case.
This is somewhat idealistic, but the idea is as follows: the reading raises questions and makes the student curious to find out whether and how the professor answers those questions. Then the student listens effectively in class because of having context (from the reading’s facts) and being curious (from the student’s questions). And then the student’s engagement with the material in class means the student will have even better questions to formulate when doing the next set of readings in preparation for the next class.
One way to practice this integration of material without doing a prep class would be to use the power of YouTube: find a YouTube video discussing a particular case, then read the case before fully viewing the video. Or read a Supreme Court case and then listen to the oral argument audio on oyez.org. Listen for the concepts in the questions and answers that you remember in the opinion itself. I would suggest the audio arguments in Campbell v. Acuff-Rose Music, Inc. as an entertaining and educational opportunity. (Here’s the Supreme Court’s written opinion.)
Prepare yourself to ask questions—good questions—when you are confused.
While listening and reading can be a virtuous cycle, most law students also have the experience of feeling really lost and confused at one point or another. Throughout the semester, and not just in the final push of studying for exams, students should monitor their own listening and thinking to recognize confusion setting in. Starting a conversation with the professor by asking good questions is one way to address a creeping sense of confusion. If asking a question after class is too crowded or just uncomfortable, go to the professor’s office hours or make an appointment.
Asking “good questions” is something great future lawyers learn as soon as possible. It’s not just “Help. I’m confused.” That’s fine for a trusted study group but not so helpful for interacting with a professor. To make a better impression as well as start a more helpful conversation, ask questions the explain what you know and don’t know. For example: “I think I’m confused. Here’s what I believe I know. Here’s what I think I heard you say. Where I’m not seeing the connection is why . . . ”
A law school prep class may give the opportunity to ask this kind of question. Outside of a prep class like this, listening to a law-school lecture on YouTube and then formulating some hypothetical questions. Or the same idea could be accomplished with a different communication medium. A student could read some difficult material and then imagine questions for a professor about what the student understands and where that understanding trails off into confusion and questions.
What else? Listening to people.
Effective classroom listening is valuable and necessary for law-school success, but not actually sufficient for good lawyering. What about the kind of listening lawyers really do? Lawyers talk to people (some friendly, some not friendly) in real conversations, in order to learn the facts, glean motivations, find out what else needs to be known, and discern how to make recommendations and arguments. This list is not meant to be exhaustive. The point is the intellectual listening integrating large blocks of topical detail in the 1L year is very different from the kind of listening lawyers actually do. A student might find it difficult to follow three classes on what constitutes various types of offers, but that same student might find herself highly motivated to interview a client about an alleged agreement starting with a so-called offer.
So here’s a proposal for some unorthodox advice on law school preparation, with a particular focus on listening. In the summer before law school, volunteer to take an oral history for an archive project. Interview an older relative about some aspect of his or her life. Tutor a kid one-on-one. Invite a potential mentor to lunch and get that person talking about life and law school and law practice.
It’s not exactly sipping piña coladas and having “me” time by the beach. Some of those suggestions may actually involve writing! But spending time in conversations like this will build listening skills. And it may even build up resilience and motivation—qualities that will definitely be needed later, to get over the hump of the 1L year.
If a client feels listened to, is that client likely to use the lawyer or law firm again? Maybe, but not if the lawyer listened deeply and sincerely while charging three times what the client expected for the work. Metrics for lawyers and firms get complicated very fast.
Courtesy Flickr/Scott Akerman/CC by SA 2.0
Kenneth Grady’s latest Seylines post points toward the lack of process (and process-based metrics) for delivering legal services. The lack of process makes it difficult to measure the services and compare them. Instead, “counseling and advisory skills” are viewed as what can and should be measured:
[M]any general counsel talk as if legal services delivered by one firm are not distinguishable in substance from those delivered by another firm. Rather, say general counsel, it is the counseling and advisory skills that separate the desirable outside lawyers from the rest of the pack. While soft skills are key qualities differentiating lawyers, until we become a process-oriented industry, legal services will not be interchangeable.
So I think what he is saying is, general counsel may be using metrics about soft skills because they don’t have “harder” metrics about process. Grady points with hope toward signs of better process:
As the ways in which lawyers handle matters become standardized, it becomes easier to compare what law firms do, the quality delivered, the value clients receive, and to find areas for improvement. This is the first major step to transforming legal service delivery from a world of inputs and outputs with a black box sitting between them, to a world of transparent legal services and costs.
I hope he’s not saying that “counseling and advisory skills” will become unimportant in a world of truly standardized legal services. I don’t think he’s really saying that, although perhaps he would like these skills to be measured in the background against a foreground with objective metrics of process.
Whether metrics for counseling and advisory skills are a good thing, or just a second-best waiting for something better, Grady’s post made me want to know more about the metrics for these skills. In particular: How do GCs measure whether lawyers and firms are listening to them?
Here’s a chart brainstorming how listening may play a role in lawyers’ and firms’ performance on a number of common metrics. The metrics are on the left; thoughts on listening are on the right:
Typical metric
How listening may play a role
Cycle time
Effective listening could help resolve matters more quickly and reduce cycle time.
Performance to budget
Effective listening can help counsel gauge how difficult a matter will be (e.g. reluctant or poor witnesses) and thus estimate budget realistically
Results to predicted outcomes
Similarly, effective listening can help with more accurate predictions by teasing out bad facts and revealing problems with potential testimony.
Timely work completion
Effective listening can help the lawyer understand the client’s preferences on setting up timelines (more flexible or more aggressive and strict).
Percentage of holdback awarded and buckets of holdbacks awarded
These are incentives that are “indicative of widespread client satisfaction.” Effective listening could contribute to the overall effect of widespread satisfaction.
Re-engagement percentile and re-use index
A client is more likely to want to re-use and re-engage with a lawyer or law firm that listened to the client effectively. Or at least, a client is not likely to engage a firm or lawyer who didn’t listen.
Recommendation index
A client is more likely to recommend a lawyer or law firm that made the client feel listened to.
Creativity index
This metric “[r]equires client to assign a score on lawyer’s creativity in solving problems, structuring settlements, providing strategy ideas, etc.” Understanding the client’s goals and what the client can give up is an example of effective listening that contributes to problem solving. In general, effective listening enhances problem solving. (This claim is worth a more detailed post at a later time.)
After action ratio
The Valorem Law Group post notes that an after-action review isn’t necessary in every case. Effective listening could help a lawyer gauge whether a client wants to spend time on this kind of review. Effective listening in an after-action session seems like it could be crucial to making the session productive, especially in a sensitive situation.
Quality of advice
Effective listening could contribute by allowing the lawyer to have more complete information when crafting advice, and a better understanding of client preferences in receiving advice.
Quality of written product
Listening indirectly contributes to good writing by giving the writer more information. “Listening” to how the writing sounds in draft form helps a writer modulate tone. Reading out loud and listening to the words can be very effective.
Quality of outcomes
Listening can tease out weaknesses and strengths that the lawyer can then use to help the client understand what kind of outcomes to expect.
Wins v. losses
Can listening contribute directly to wins and losses? I’ll make a case here: Poor listening can result in problems such as failure to make a record, so yes. Good listening can steer a lawyer toward the arguments that matter most to the judge, so yes. And effective listening can help a lawyer manage which cases are appropriate to go the distance as “contested proceedings,” thus affecting the overall set of cases measured in terms of winning and losing.
Collaboration
As defined by Valorem Law Group, a collaboration event would be “two or more people meeting to discuss the case, brainstorm about strategy and tactics, and similar discussions yielding value for client.” Listening is crucial to these meetings. This one isn’t hard at all.
Transparency index
Transparency seems to be more about what the lawyer says and shares than how the lawyer listens. But effective listening can help a lawyer recognize what the client wants in terms of frequency and manner of sharing, and when the client may not understand. (Giving a correct and detailed explanation that the client does not understand may not help a lawyer’s transparency rating.)
Total value index
This index “[f]actor[s] in all metrics weighted in whatever manner client sees fit.” Listening could contribute to the client’s perception of “total value.”
Percent of claims resolved within 30/180 days of claim
As noted earlier, effective listening could help resolve matters more quickly and reduce cycle time.
The list here does not include all of the metrics from the Valorem Law list. Although I try to relate almost every legal topic to law in some way, I just could not see the connection to metrics such as “effective disaggregation,” “average number of timekeepers per matter,” and “average seniority on team,” as well as a number of quantitative measures based on fees. (But wait. For average seniority on team, maybe there is a connection to listening. Ineffective communication with junior associates may lead them to seek opportunities elsewhere, reducing the pool of senior associates available for staffing.)
Another caveat is that not all legal matters involve the traditional definition of listening, as in some form of spoken and/or nonverbal input. For those that do involve meetings or phone calls at any step of the way, the metrics above suggest that listening can affect a pretty broad variety of metrics.
The Valorem Law post notes that many of these metrics are “subjective” such as whether a client would recommend a firm or lawyer and what the client feels is the “total value index.” And that brings us back to the difficulty of measuring listening in any context.
Securities law and divorce law. Lawyers in these practice areas may not be from different planets, but they live in different “hemispheres,” according to sociological work being explored by Deborah Merritt at the Law School Café. Her first post is here and second post here.
Flickr/CC by SA-2.0
Merritt is revisiting the study Chicago Lawyersby sociologists John Heinz and Edwards Laumann. This study generated the “hemispheres” metaphor for categorizing the work done by lawyers:
Heinz and Laumann concluded that a “fundamental distinction” divided lawyers into “two hemispheres.” One group of lawyers “represent[ed] large organizations (corporations, labor unions, or government),” while the other “work[ed] for individuals and small businesses.” The division between these two was so sharp that “[m]ost lawyers reside exclusively in one hemisphere or the other and seldom, if ever, cross the equator.”
The concept of these two hemispheres immediately brought to mind potential differences in listening. Here are some exploratory thoughts. More are certainly welcome in the comments.
First-hemisphere listening
Listening in the “first hemisphere” means listening to large organizations. A single organization may or may not have a single “voice,” notwithstanding established lines of communication between the lawyer and client. A lawyer who represents an organization must know how to listen efficiently but broadly to the different perspectives of that organization. For example, what if the client contact urges an aggressive approach in a particular matter, but the key witnesses are unwilling or ineffective?
First-hemisphere listening may also involve heavy use of e-mail to enable simultaneous communication among a group. This could mean losing the nonverbal nuance of spoken conversation, as many critics of e-mail have pointed out. It’s a truism of e-mail skills that the best communicators know when to pick up the phone.
Listening to an organization also means sensing whether the key players remain satisfied with the work. As I recently heard a law firm’s chief marketing officer say, “When a [big] client isn’t happy with your work, they don’t tell you, because they don’t like confrontation. They just stop giving you any more work.” She made a great case for how a marketing officer in a big firm can help with listening to clients and teasing out more of what they really think.
Second-hemisphere listening
Listening it the “second hemisphere” would involve a different set of challenges. This second hemisphere brings to mind the more traditional image of listening such as one-on-one meetings where the lawyer listens actively and builds rapport. Perhaps the lawyer must guide the conversation to legally relevant facts, while respecting the client’s need to be heard. Many (almost all?) lawyers in this hemisphere also need strong skills in cross-cultural lawyering to be able to effectively listen to and problem-solve with their clients.
The business of law works plays a role here as well: lawyers must work on efficient yet welcoming intake procedures and appropriate listening behaviors from any staff who interact with individual clients. (See Lee Rosen’s tale of woe on Divorce Discourse, in which he interacts with a law firm in an attempt to refer some business.)
Why do these hemispheres exist?
So in terms of listening, are the two hemispheres more different or more alike? To think about that, we should think about why these different hemispheres exist in the first place. Merritt considers several factors such as income and power. Ultimately, she suggests—drawing from Heinz and Laumann’s work as well as Andrew Abbott from the University of Chicago—that the real issue is “professional purity”:
By professional purity, [Abbott] means the ability to resolve problems primarily through application of the profession’s own principles. The most prestigious professionals apply their knowledge to particular problems, but they do not grapple directly with messy facts or human emotions. Lower status professionals, in contrast, resolve problems that reflect a full range of “human complexity and difficulty.” (Andrew Abbott, Status and Status Strain in the Professions, 86 Am. J. Sociology 819, 823 (1981).
This idea helps to delve into the listening question. For the first hemisphere, perhaps listening takes a background role to the foreground role of legal analysis and problem-solving driven by that analysis. As Merritt writes, the lawyer’s role here is doing “some of the most ‘legally’ powerful work in the profession” such as examining “statutes, rules, and precedents to construct new, advantageous ways for the client to conduct its business.”
The privileged role of the lawyer here, doing this “legally” powerful work, perhaps can generate leeway for how and when the lawyer communicates. In the classic law-school legal-memorandum assignment, the legal analysis may lead to additional facts to investigate. Not knowing all the facts to investigate up front does not bring blame on the lawyer because unique legal analysis drives what needs to be known. Individual contacts in an organization may or may not be impressed with a particular lawyer’s communication skills, but one person’s experience may not be the most important criteria for selecting counsel.
Moreover in the first hemisphere, the organizational client’s workplace culture itself may discourage the expression of “messy facts and human emotions.” A non-emotional workplace culture could thus reduce the expression of these emotions in interactions with lawyers. (Merritt implies and I would argue that an emotion-suppressing workplace culture does not in fact mean the effective first-hemisphere lawyer need not worry about those emotions. More on this in a moment.)
For the second hemisphere, perhaps there is more obvious, explicit pressure on listening. It is certainly what is needed to deal with the “full range of ‘human complexity and difficulty.’” For individual problems that can’t really be solved with a neat legal solution, listening can go a long way toward helping and healing. An individual client may not know social-security law, but that client can recognize whether the lawyer is doing a decent job of listening. And the individual client may be less constrained on finding new counsel if the client feels dissatisfied. (However, lack of experience with lawyers and lack of a consumer mentality may cut the other way.)
Ultimately, Deborah Merritt suggests that the differences between the first and second hemisphere are less than we might think:
“Both hemispheres involve mundane, repetitive tasks, as well as intellectually challenging work. Similarly, effective education of ‘second hemisphere’ lawyers is just as intellectually demanding as that for ‘first hemisphere’ ones.”
First-hemisphere lawyers who refuse to delve into “messy facts” ultimately do risk their relationship with organizational clients. Merritt cites the facts that corporations complain when their law firms do not take the time to really understand their business.
What does this mean for law schools?
Merritt makes a number of points about teaching and scholarship. The “most important changes we can make in law schools, for all clients and lawyers”is to reduce the focus on appellate decisions. Instead, she argues law schools should bring client interaction into the entire law-school curriculum, including the sacrosanct first year.
In this way, students would be better prepared for their work as lawyers, in either hemisphere. Perhaps ultimately this type of reform would begin to erode distinctions between hemispheres as well, although they are very deeply rooted, as the sociologists work has repeatedly showed.
Law firms fail for many reasons. Among them is not one that might be expected. Very few, if any, of the law firms that have “failed” has foundered because the people employed there were lousy lawyers.
The causes of these debacles are varied: too much debt or space, not enough revenues or collegiality (the latter merely referring to how to divide the former), geographic expansion for its own sake, promises to lateral recruits that cannot be sustained according to any rational calculations, and so on.
As I read the article, I wondered whether there is a connection to listening. Poor skills in business and management are the real culprits, Wu says:
It is necessary to be great businesspeople, too. Or to affiliate with great businesspeople, which means recognizing that the technical skills needed to be a great lawyer might (or might not) correlate with the other skills needed to thrive.
Dean Wu emphasizes hard skills such as understanding debt and managing costs such as compensation. But soft skills—including what might be called advanced business listening—are surely part of the solution as well. In the “business world” (acknowledging very broad generalization here), listening is recognized as at least helpful, if not essential, to effective management—as well as under-appreciated and often poorly practiced in the field. Anyone who follows LLL’s Twitter feed will know how often it draws upon the Harvard Business Review, which addresses listening skills quite a bit such as here and here and here and here.
The kind of listening that may be most pragmatically effective for addressing the failures Wu describes is the most difficult listening of all: listening for what isn’t there. (Peter Drucker: “The most important thing in communication is hearing what isn’t said.”) Listening for the client pitch that could involve multiple client-service teams in a law firm but goes ahead with just one team. Listening for the lawyer on a complementary team who isn’t saying much about the opportunity he or she didn’t get. Listening for the lunch meeting that never gets set up with the attorney who isn’t in the office that much anymore. Listening for the sound of one foot out the door.
This isn’t just about the technical definition of listening as a receptive communication skill, although face-to-face conversations are a major opportunity for sensing these issues. It’s more about broadly sensing and perceiving what is happening—and not happening—inside the business.
Sensing what isn’t there is one of the hardest things. For both individuals and groups, the absences and gaps are overshadowed by the what is there: the pitches that do happen, the events that do take place, and the lunches that people do make time for. The cognitive experts, drawing on Nobel Prize winner Daniel Kahneman’s work, call this “WYSIATI”: What You See Is All There Is. For lawyers and firm managers, if they are seeing clients and revenue and billable hours, it may be very difficult to see the opportunities that aren’t happening. (Read more on Kahneman’s work and how it relates to lawyers and listening here and here and here. And here and here are a couple of good reviews of his book more generally.)
What are the ways to compensate for these biases and better understand what’s not happening? First, there is general investment in being connected to colleagues: staying in touch with people and having conversations. Good conversations create the opportunity to perceive not just what people say (“Hey, everything is going really well! Working with the XYZ client is really keeping me busy”) but also what they don’t say and what their nonverbal behavior may reveal. (The New York Times did a nice piece on Anita Cicero, partner in charge of the D.C. office of Drinker, Biddle, and Reath. She mentioned listening as key to her management job and her client-relations job. And this article on “7 Habits of Highly Effective Law Firm Leaders” alludes to the importance of being visible and listening to others’ perspective throughout the firm.)
Second, it’s possible to mitigate the WYSIATI problem with methods such as checklists and skillful use of questions. Checklists are not the most glamorous management technique in the world, but they are quite effective for certain situations. (Read Atul Gawande’s book The Checklist Manifesto. Please.) Checklists are known and even loved for catching mistakes. The “smart” lawyers Wu is talking about may congratulate themselves on their amazing checklists for producing great client work.
But checklists are more than a stupid-mistake-prevention technique. Teams and organizations can use certain kinds of checklists to force collaboration and conversation at specified points. Only in that way can checklists even begin to address complex long-term projects such as building a skyscraper—or maintaining a thriving law firm.
This type of listening is not just for recognizing problems as they occur, but also for productively collaborating in a way that anticipates and plans, addressing “issues” before they even become “problems.” Ken Grady of Seytlines has recently bemoaned the emphasis on the reactive, failure-based culture of much legal training. When we talk about listening, it needs to be stressed that listening is not just for recognizing problems but also anticipating and preventing them. Thus, this type of advanced business listening will sense opportunities ready to be created: The client pitch that can involve multiple teams. The contribution that a lawyer or team can make to a new representation. The lunch meeting that can launch a new collaboration within the firm.
For this kind of collaborative, anticipatory checklist, meeting face-to-face at strategic points is part of what Gawande recommends, along with prompting all members of the team to contribute in a constructive way. (Thus a regular law-firm meeting stuffed with top-down lecturing and cursory Q&A wouldn’t really count. Likewise an open-ended venting session with no particular goal is not what he is talking about.) I am certain that many healthy law firms use practices consistent with what Gawande recommends, whether they are intentionally implementing a checklist-based management theory or not.
It would be interesting to hear more from readers about checklists for law-firm management, and more broadly how listening may play a role in law firms’ strategic planning and management. And even more broadly still, how can law firms and lawyers, and law schools as well, respond to the challenge of Dean Wu’s article on why law firms fail?
Listening is among the softest of the soft skills, so soft it’s hard to perceive and even harder to measure. It’s not talked about as much as writing or speaking—or even the other “receptive” communication channel, reading—but I believe it has a huge impact on every aspect of law students’ and lawyers’ effectiveness, both real and perceived. If a law student gets every relevant fact from an externship client including important gaps in the client’s knowledge and then produces excellent notes for the supervising attorney, but the client does not feel heard, is that a successful interaction? How can law students and lawyers enhance their listening skills?
I hoped to mainly focus the blog on constructive ideas, as opposed to the “what not to do” method so prevalent in some conversations about legal writing. Yet soon as I launched the blog, the most common reaction was to parade out the listening failures:
“Your blog is called Listen Like a Lawyer? Oh, so you mean poorly and with preconceived ideas?”
Thus the temptation. It can be fun to write about bad examples of anything, whether listening or writing or any other skill. I had a little too much fun writing a Halloween post about “scary” listening here. And here’s a more serious post focusing on terrible listening.The attraction—and impact—of talking about failure is based on a larger disturbing reality:
[N]egative information, experiences, and people have far deeper impacts than positive ones.
The temptation to talk about any skill in terms of failure came immediately to mind when I read Ken Grady’s latest post at the Seyfarth Shaw Lean Consulting blog SeytLines, “On Teaching Lawyers to Succeed Rather than Fail.” His post focuses on critiquing the case method of law school, in which almost every fact pattern by definition represents a failure of the parties and lawyers to find a mutually beneficial solution and settle the case.
His critique is not unreasonable: why is that a good way to teach lawyers to solve problems? Actually Grady is less interested even in solving problems than in anticipating and preventing them. And he doesn’t think the case method is very good at this at all:
“[T]aken to an extreme and when used as the primary method of teaching students, [the case method] becomes a vicious circle keeping us trapped in a cycle of failure.”
Re-thinking the model to teach law students how to proactively work with clients to prevent legal problems turns out to be very difficult. Prevention is a lot harder to see than failure:
“Much of the best lawyering ever done was not recorded in case books or articles. It went unrecorded because that work prevented failure from happening. The lawyers who provided those services kept their clients out of trouble, kept costs down, and avoided burdens on society.”
Role-playing real situations is one way to get at preventative lawyering, as in the following example from Grady:
“A general counsel is faced with a new business model. She investigates the obvious legal risks of the model and does not find anything at odds with existing law. As far as she can tell the proposed business model is perfectly legal. But still, something does not seem right to her. She pushes further into the model. As she studies it, she realizes how it may conflict with evolving concepts in the law and societal trends. Today the model is perfectly legal, but in three to five years, it most likely will be problematic. Our general counsel could do nothing and leave any problem to the future. She could follow the maxim of make money today and let tomorrow bring whatever it may. Or, she could look for something to mitigate the risk.”
Problem-solving and leadership
Grady’s post “On Teaching Lawyers to Succeed Rather than Fail” reminds me a lot of Emory Law Professor Dorothy Brown’s recent article Law School Without Borders (PDF). In the article, she outlines an alternative approach to teaching law. She gives a case study problem solving and problem prevention for a hypothetical client who happens to be a “nationally known Southern-style celebrity chef” sued for race and sex discrimination. In the article, Brown walks through the possibilities for achieving success through proactive, interdisciplinary, collaborative lawyering. More broadly, she suggests what law schools can and should do to broaden their focus:
“A law school that incorporates more than just teaching students how to think like lawyers, but how to also solve problems and take a leadership role will graduate students better equipped to add value to their firms and clients on the first day. Emotional intelligence should not be underestimated. By emotional intelligence, I mean empathy, exercising good judgment, maturity, wisdom, common sense, and last, but not least, the ability to have difficult conversations successfully.”
Hear, Hear! to the idea of teaching leadership, emotional intelligence, and difficult conversations. The “law school without borders” Professor Brown describes is consistent with Ken Grady’s interest in teaching problem prevention through anticipatory lawyering. Their ideas both fit within and challenge the ongoing conversation about experiential learning in legal education, such as here.
Better listening by analyzing listening successes
This is a huge topic, but what we can do here is to bring the focus back to listening. From time to time, we can turn away from “10 Ways to Be Awful at Listening.” We can instead talk about “10 Ways Great Listening Helped Lawyers Serve Their Clients By Understanding and Avoiding Potential Disputes.” Here are some questions:
How have you seen lawyers use listening to successfully prevent and solve problems?
What did they do, specifically, that showed their listening?
How can proactive, preventative, powerful listening be a tool for lawyering success?
What are some ways to teach that kind of listening?
This blog is a place where not only lawyers but all legal professionals can come together around the topic of listening. Listening helps to bind us together in productive work—or hold us apart, when we listen poorly. Legal marketing professionals have a huge contribution to make here, as they really know deep in their bones the importance of listening to the client (and the potential client) in a variety of ways. I didn’t attend last week’s annual conference of the Legal Marketing Association, but the meeting produced an excessive and interesting number of live tweets, so I decided to point out some themes of interest here on the blog.
The keynote was by Daniel Pink, and he kicked it off by invoking Alec Baldwin’s ABC moment—”Always Be Closing”—from Glengarry Glen Ross to set the stage. (I thought about linking that clip here but it is quite NSFW.)
Dan Pink suggests a new set of ABC’s for a world where the seller no longer has superior information to the buyer. Instead, the key principles to successful sales, or marketing, or whatever term makes you comfortable when it comes to finding potential clients and convincing them to use your services—which this blog fundamentally assumes to be activities of interest to most lawyers and legal professionals—are attunement, buoyancy, and clarity. If attendees got one thing from Pink’s keynote, it would be these three principles:
1 Insight: Change to Sales Landscape from Buyer Beware to Seller Beware. 3 Principles: Attunement, Buyoancy, Clarity. #LMA15@danielpink
Each of these principles has something to do with listening, I think, with attunement at the top of the list.
A. Attunement and listening mutually reinforce each other
Attunement means being able to understand the client’s point of view. Being open to the other person’s perspective is crucial:
@DanielPink Attunement – can you get of your own head and see the perspective of a client/prospect #LMA15 — Elonide Semmes (@Esemmes) April 14, 2015
But it’s not the same thing as emotional intelligence:
Attunement is not emotional intelligence-use your head as much as your heart. #LMA15 keynote — Sunny Bane (@sunnybane) April 14, 2015
To stress the point, what the other side is thinking is at least as crucial and probably more so than what they are feeling:
Takeaway 2: imagine what the other side is thinking. more important to attunement than feeling in a biz setting @DanielPink#LMA15 — Molly Porter (@molly_porter) April 14, 2015
Both thought channel & feeling channel (empathy) attunement (perspective) is not EQ – use head as much as heart @DanielPink#lma15
Tweets from other sessions, not the keynote, touched on attunement in different ways such as handling the pitch meeting and maintaining the relationship:
[I should never have to type this again.] Paying attention to what GC are expressing as needs during a pitch meeting is critical. #LMA15 — Nancy Myrland (@NancyMyrland) April 15, 2015
Attunement remains crucial throughout the relationship, when things are going well . . .
Client Feedback Program at Faegre: starts with Client Relations Team reaching out to start conversation internally. #LMA15 — Nancy Myrland (@NancyMyrland) April 15, 2015
. . . and especially when the relationship may be going south:
In an ideal world, a client feedback interview would happen immediately upon data showing the account is trending downward. #LMA15 — Nancy Myrland (@NancyMyrland) April 15, 2015
One tweet pointed out the importance of attunement for legal marketers in their role as facilitators of business delivered by others:
Attunement is of foundational importance. Absolutely necessary for legal marketers who are selling, but not providing, the service. #LMA15 — Kathryn Whitaker (@KBWhit) April 14, 2015
This was an intriguing point with several interpretations. Maybe it’s necessary to understand “the service” and the providers of that service, and the strengths and weaknesses of both. As a witness in one of my first IP cases said, “My job is to make sure the sales team only sells what the engineering team can actually deliver.” Or maybe it’s necessary in the sense of how the legal marketer adds value to a law firm: legal marketers who are superior at attunement to client needs add irreplaceable value to the law firm’s team of professionals.
And this point about attunement in a three-point relationship (legal client/legal marketer/lawyer) may be expanded to the cover lawyers. Being attuned to the knowledge and expertise of the legal marketers who specialize in understanding clients and potential clients can help lawyers better understand their clients as well.
B. Buoyancy means dealing with rejection
The value of buoyancy apparently came wrapped in some generalities about lawyers’ perhaps non-buoyant personalities:
Buoyancy: you have to be able to deal with rejection – harder for people who are intelligent perfectionists aka lawyers @DanielPink#lma15 — Molly Porter (@molly_porter) April 14, 2015
But relationships can help:
Great point @lydiabednerik. Buoyancy doesn’t mean you have to jump in the water w/out a floating device. Find & use your champions. #LMA15 — Kathryn Whitaker (@KBWhit) April 15, 2015
The tweets don’t say this, but isn’t it clear that listening is a great tool for anybody to build relationships with mentors and sponsors?
I’ll have to read Pink’s book To Sell Is Human to get a fuller picture of what he says on buoyancy. He also wrote the book (literally) on motivation, which leads me to expect words of wisdom on self-talk, or internal dialogue. What do lawyers and legal professionals hear when they listen to their own self-talk? To be buoyant, we need healthy ways of handling self-talk. And if our self-talk is overwhelmingly negative, we probably can’t listen effectively to others for problem-solving and relationship-building.
C. Clarity is about finding problems and curating information to help solve them
The clarity principle seems to focus on finding problems and sharing information in productive ways. Pink spoke about helping clients find problems:
RT @karajmckenna: 3rd principle from @DanielPink = clarity. Be problem finder not a problem solver. Access information then curate it #LMA15 — Kevin O’Keefe (@kevinokeefe) April 14, 2015
The part about not being a problem solver is interesting. “Solving” problems too quickly can itself cause problems, such as not fully understanding the actual problem and not forging the relationship necessary to address it. And jumping in to answer a question, rather than fully hearing someone out, is a hallmark of bad listening.
So finding problems is part of clarity, and the most advanced way to do this is to find the problems that are hard to perceive:
Clarity: can we separate the signal from the noise? Can we help clients find hidden problems? @DanielPink#LMA15 — Molly Porter (@molly_porter) April 14, 2015
The theme of information saturation plays a continuing role throughout these new ABC’s. For example, clarity is a huge part of content strategy, basically selecting and sharing what clients and potential clients really need to know:
Everybody has access to info now. More valuable is curating that info. @DanielPink#LMA15 — Tanya Lord (@TanyaOneNorth) April 14, 2015
And that brings us full circle to the role of the legal marketing professional. Revealing more about who the clients are and what they need helps everyone:
Key to content strategy: identify personas that map to key client types. How do we get more attuned for greater clarity? @Esemmes#LMA15
“Personas” and “key client types” may be a bit jargon-y, but lawyers and legal marketing professionals can work together to understand each other’s language and the ideas behind that language. Listening to one another in this way helps with the broader common goal of listening to the client. Listening helps with all of the new ABC’s of selling, which in turn lead to getting business, forming relationships, and ultimately serving clients in effective ways.
This post is for people who don’t mind reading a bit of jargon from the world of training and professional development. It’s all about how we define effective listening and how lawyers can develop it on the job, with some implications for legal education as well.
One challenge in integrating a focus on improving listening
skills into the traditional law school curriculum, particularly the required
curriculum, is that it can be difficult to ascertain what “listening
skills” are. A failure to break down competence in a skill into component
parts can create confusion both for teachers, who need clear objectives
and assessment tools, and students, who need clear direction, thus
making it more difficult to integrate the skills into a curriculum.
Listening has received a variety of definitions from communication scholars, culminating in this from the International Listening Association: “the process of receiving, constructing meaning from and responding to spoken and/or nonverbal messages”
This definition underscores the problem with measuring listening. How do you measure whether a person is “receiving” messages, much less “constructing meaning” from them? Responding is much easier to observe and assess. (Yet another reason “active listening” gets so much love; you really can know it when you see it because by definition it involves an observable behavior.)
But just because measuring listening—all its aspects—is difficult doesn’t mean it’s not worthwhile. An example worth studying comes from the Microsoft in Education program, which has undertaken the task of stating a broad range of Education Competencies for Teachers and School Leaders, including Listening Competences. (Also here are some on interpersonal skills.) The rest of this post focuses on these particular “Listening Competencies” and what lawyers might draw from some of their substance as well as the framework used to present them.
Tiers of listening from basic to expert
The Listening Competencies document begins with a rubric classifying listening skills into four tiers:
basic
intermediate
advanced
expert
An example of a basic listening skill is being attentive, and an expert listening skill is “making solid eye contact, intuitively absorbing the gist of the message.” A basic listening skill is being considerate of the opinions of others, and an expert skill is being able to accurately restate the opinions of others even when you disagree with them.
So this type of rubric is far from revolutionary but harder than it looks to develop. In the legal field, what do we consider basic and expert listening, and gradations of intermediate and advanced listening in between?The educators’ competencies do not adequately speak to the complex and contested situations lawyers find themselves dealing with; they would need to be developed and tailored significantly to describe the skills required by lawyers functioning in the real world and law students doing real-world experiential work.
There is a growing body of work in the area of articulating lawyering competencies, intensified by many factors such as the push for law schools to produce practice-ready graduates. The new book Building on Best Practices: Transforming Legal Education in a Changing World by Lisa Bliss et al. is an example of a very recent contribution. Listen Like a Lawyer will keep exploring the research, as well as talking to a variety of lawyers and law professors in order to revisit this question over the summer.
Develop-in-place assignments
In addition to the skill tiers, the Listening Competencies document also raised the idea of “part-time develop-in-place assignments.” This was not a term I had heard before, but the idea of a “develop-in-place assignment” seemed intriguing. Lawyers may prefer training opportunities that are more customized and active, with less loss of productivity than something like attending an all-day CLE.
So what does “develop-in-place” mean? From context, we know it is more than remedial training. For remedial needs, the Listening Competencies document has a separate section for “self-development remedies.” They include gems such as “keep your mouth closed” and “eliminate . . . . pencil drumming.” (There are more difficult items on the remediation list as well, such as “[l]isten to those who waste a lot of time, but try to help them.” How is that remedial?)
After the remedial section, the Listening Competencies document goes on to list ideas for “develop-in-place assignments.” The common thread is practical, hand-on training opportunities. They exist somewhere in between remedial and highly advanced. A few examples in the list include finding and learning from an expert; going to campus as a recruiter; and becoming someone’s mentor. The list also suggested making peace with an enemy or other person “you have disappointed, had trouble with, or don’t get along with.” The list also suggested going on a trip to a foreign country. (Yes, that would be a pretty awesome way to develop competencies! Sign me up for that one, please.)
Develop-in-Place Assignments are job tasks that require application of certain competencies. Research shows that 70% of development happens on the job, and jobs differ in development power and in the competencies they address. You can’t always change jobs for development reasons alone, but there is almost always a develop-in-place assignment that you can select in your current job to address your development need.
This definition should appeal to lawyers in that it’s about doing an actual job task that also happens to develop skills or competencies—in other words, learning by doing. The idea that “there is almost always a develop-in-place assignment . . . in your current job” may ring true for many practicing lawyers. For example, new lawyers doing a lot of writing and research may seek out pro bono opportunities to work with clients more personally. (This isn’t a simple matter, and pro-bono work should be more than an opportunistic skill grab. But done correctly, it is a way to serve clients and the public and apply lawyering competencies.) Similarly, lawyers who work on a lot of individual, fact-intensive matters may seek time to write an article taking a broader perspective.
Expert lawyering requires so many different competencies, with listening being just one aspect of a broad picture combining intellectual, interpersonal, more broadly social, and practical skill sets. Marjorie Shultz and Sheldon Zedeck may have the definitive set in their list of 26 lawyering effectiveness factors. Given this eclectic mix and the value of learning by doing, this concept of “develop-in-place assignments” seems like a pretty good idea for professional development.
Please share your thoughts on listening competencies for lawyers, and ways that lawyers could use “develop-in-place” assignments to practice and improve their listening skills.
Daniel Goleman is the father of the emotional-intelligence movement. He recently shared a checklist of “EQ” competencies with the New York Times. EQ has four overarching categories:
1. self-awareness
2. self-management
3. empathy
4. relationship skills
Not surprisingly, listening was included as a skill related to empathy:
You pay full attention to the other person and take time to understand what they are saying, without talking over them or hijacking the agenda.
In the context of ever-present smartphones, this is much harder than it used to be. The presence of a phone decreases the actual empathy the person feels, according to several psychology experiments: “[B]ecause of the many social, instrumental, and entertainment options phones afford us, they often divert our attention from our current environment, whether we are speeding down a highway or sitting through a meeting,” reported the Scientific American. “[C]ell phones may serve as a reminder of the wider network to which we could connect, inhibiting our ability to connect with the people right next to us.”
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