A tale of two sales

Jennifer RomigLeave a comment

A 40-something lawyer attempting a triathlon is apparently so common as to be a cliché, but I’d rather be a healthy, fit cliché than wither away uniquely.

Courtesy Flickr/CC by-SA 2.0
Courtesy Flickr/CC by-SA 2.0

Two recent experiences shopping for triathlon gear prompted this post about listening and sales. Listening is a crucial part of one-on-one marketing, and a few aspects of my experience may help lawyers as well.

Store #1

I happened to visit this store while picking up a race number for a small running event. It’s a place I’ve always driven by and been interested to visit, but never actually gone into until now. While I was picking up the number, the store owner stood by. He took the first step by asking if I wanted to look at some shoes. I actually am very interested in the new super-cushioned shoes I’ve been reading about, which this store does carry. But I didn’t say that just yet. I gave a noncommital but friendly “maybe, when my current shoes wear out.” I then told him the model of my current shoes.

The response was immediate and vociferous, “Oh, we’ve got to get you out of those.” He then critiqued their design and suggested they are actually weakening my feet. He asked me if I saw a television news report with an orthopedist’s endorsement of a certain brand featured in this store.

The store owner didn’t find out that my existing brand of shoes has helped me recover my running career. He didn’t find out that I have a long history of orthopedic issues. He didn’t find out what I like in a pair or shoes, or that I was actually highly interested in a different brand of shoes that he actually does carry in the store. It appeared he had a featured brand he was selling to every runner that came in the store. I got the strong impression his initial conversation with almost any potential customer would lead to the same solution no matter what the potential customer said.

Store #2

This was a bicycle store, so potentially a much more expensive purchase. A salesperson approached me as I browsed and asked how he could help. He said he had only been working there for a few weeks and brought in a more senior sales person. She asked a series of questions. First and foremost: “What is your goal?”

After I told her, she asked some follow-up questions about my commitment to triathlons. She said she would recommend a very different bike for someone attempting a triathlon once as a bucket-list item as compared to someone who was going to ride more frequently and compete throughout the summer and beyond. It was understood I wouldn’t be walking out right then and there with a bike, but she offered to e-mail me some “eye candy” and specs on the bike she suggested. Her follow-up e-mail began with “It was a blast talking with you about bikes today” and continued with detailed information about the bike.

Lessons for lawyers

What do sales tactics in specialty sports stores have to do with marketing legal services? I saw a few potentially relevant points:

Marketing to someone you just met

I had never seen the shoe guy or the bike lady before in my life. To be fair to the shoe guy, I went into the store for a different reason (to pick up a race number), whereas the bike lady knew there’s no reason for me to be in that store other than interest in bicycles.

Either way, establishing rapport seems like a fundamental sales tactic. Others have suggested an 80-20 rule: get the other person talking 80 percent of the time. In his excellent and fun book Ditch the Pitch, marketing expert Steve Yastrow recommends a higher burden: keep the conversation on the customer 95 percent of the time.

The shoe guy didn’t ask me a question other than “while you’re here, do you want to look at some new shoes?” Once he got a quasi-positive answer, he was off and running with his pitch about the benefits of the shoes and the recommendation of an orthopedic specialist in a news report.

In that sense, he fell into a trap lawyers may face as well: the desire to show what you know. It does seem intuitive that one can sell by impressing them with your subject matter expertise. This seems especially true for discerning buyers with competitive goals and a willingness to innnovate for better results. And it is especially true when you have developed an expertise in a new and exciting approach or idea or product. But he gave the impression of being wound up like a child’s toy to release his spiel.

The bike lady asked a series of questions and didn’t talk about bikes at all until she learned more about me and my goals. After building a rapport with these questions—the equivalent of intake questions for lawyers?—she moved toward a solution that addressed the questions. At that point she selected and described a solution, i.e., a particular recommended bike. She pointed to its features and compared and contrasted it with other solutions, i.e., other bikes higher and lower in the spectrum of features and price.

Marketing to someone who has already made purchases in that same market

The shoe guy heard what brand and model of shoe I wear and immediately said, “We’ve got to get you out of those.” The message and the phrasing set a bad tone in a couple of ways.

First of all, there was no “we” at that point, since I had been in the store all of five minutes. Second, I am actually really quite happy with my shoes. It almost made me feel bad about the shoes I’m wearing. Instead I resolved the dissonance by shifting into a feeling of dislike toward the sales person.

Despite the good experiences with my existing shoes, I actually would experiment with another pair of shoes that are similar to these because I have read about great results other runners have gotten from the new super-cushioned shoes. But I’m just not going to go in a totally different direction, given the good experience I’ve had to this point. And that guy would never know this because of how he approached the entire conversation.

So, if a lawyer is talking to a potential client who has a history with a different lawyer or firm, it would seem rather arrogant to lead with “We’ve got to get you away from that [lawyer or firm]!”

Rather, the lawyer could find out more about what the potential client needs in terms of business services. What does the potential client want from a lawyer? There’s no need to trash the status quo if you can—subtly—offer an improvement on it.

Marketing what you believe to be the superior product or service in the field

The bike lady selected a model to show me and talked about its great features including how light it is, its hidden cables, its smooth gears. She pointed out how the pedals can be customized to preferred feel and functionality. She offered to let me ride it in the neighborhood. She then talked about models one step down and one step up from that model. And she mentioned that adjustments to the bike are free in the store for the life of the bike—potentially 10 years or more.

In this way a lawyer can present a client or potential client with options: the one that seems the most effective to the lawyer, even if it’s not the cheapest approach, as well as the higher-end and lower-end ways to deal with the issue, including their advantages and disadvantages.

Creating a longer-term relationship with the customer/client

Some kinds of businesses are better able to form a relationship than others. A bike needs adjustments and can benefit from various add-ons any time during its useful life. The bike lady made sure to mention the free adjustments for life that come along with any bike purchase.

Still, even a one-off sale can form a relationship. For running shoes, the chance to try on the shoes in the store could be a powerful incentive to buy because now you’ve spent the sales person’s valuable time working with you. Or the store could provide ongoing support with smaller items like running gloves, water bottles, special compression socks, and so on.

It may be disturbing to discuss similarities between marketing legal services and selling special socks. But if those socks are a reasonably inexpensive way to prevent years of injury and expensive physical therapy, then they are pretty awesome. And similarly with legal services, an ounce of prevention may be worth a pound of cure, creating a grateful client. Walking out of the running store with a $40 pair of compression socks and a positive experience would have made me more likely to stay interested in buying shoes and other gear there over the long term.

Standing by the product/service while also providing flexibility

The bike lady acknowledged that the bikes she is selling are a fairly major purchase. But, she said, if you buy it and get it home and within 30 days decide you just don’t like cycling and aren’t going to use it, bring it back. We’ll give you a refund. Or, she said, if you get it home and within 30 days decide you actually love cycling and want to get an even better bike, we’ll let you trade up into something nicer.

Legal services may offer similar flexibility given the many decision points along the way in handling a legal matter. For example, a client may be able to work with counsel to test out a particular strategy and then adjust upward or downward. By explaining some of the time frames and decision points for adopting a different strategy, the lawyer can help the client understand she is not locking herself in to one decision forever.

Conclusion

Listening seems to be a key part of all of the above. The person who took time to listen to my goals and to tease out some of my experiences with biking made a far better impression than the person who reacted to my status quo by criticizing it and trying to force his favorite off-the-shelf solution.

Of course lawyering is different than selling shoes and bikes. But the universal principles of persuasion are at work for all kinds of customers and clients in all kinds of selling environments.

Innovating the 2L and 3L years

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How is listening taught in law school—if it is taught at all? Some wonderful work is being done, especially in the clinics. But even the strongest and most effective approach to listening typically found in legal education today seems to be based in individual courses. It seems possible that a given law student could graduate from a typical U.S. law school without working on listening skills at all.

That’s not the case in an innovative program at the University of New Hampshire School of Law that re-envisions the 2L and 3L years. A new report by Educating Tomorrow’s Lawyers, an initiative of the Institute for the Advancement of the American Legal System, describes the Daniel Webster Scholar Honors Program. Twenty-four students are selected at the end of their first year of law school to participate over the next two years. These students attend a careful sequence of subject-matter and skills classes. They receive frequent feedback (formative assessment) and must assess their own progress through a variety of reflection assignments. Upon successful completion of the program, students are admitted to the New Hampshire Bar without taking the regular bar exam, a fact touted in the New York Times’ recent article on bar-exam critics.

Listening plays an explicit role at the beginning, middle, and end of the Webster program.

The beginning: Getting admitted to the program

First, students are actually selected for the Webster program in part based on their communication skills. The report notes that during the program’s first year in 2005, student selection was based in large part on prior academic achievement. Now, selection is based on personal interviews with the selection committee and the committee’s assessment of a broader set of criteria. The criteria are grouped into four main categories: professional relationships, professional development, personal responsibility, and academic competence. A number of criteria in the professional relationships category relate to listening:

  • Have integrity and engage in honest discourse
  • Treat themselves and others with respect
  • Work well with others, acknowledging their own and others’ strengths and weaknesses
  • Show empathy and kindness to others
  • Listen attentively—know when to listen and when to contribute
  • Have humility—admit to mistakes and make apologies

And several criteria related to professional responsibility relate to listening as well:

  • Seek—and learn from—feedback
  • Are open to new ideas, seeing things from others’ perspectives, and sharing their views

The middle: Sequence of classes

Students in the Webster program proceed through a preset sequence of classes. Working with simulated clients appears to be required every semester. For example the first semester of the 2L year requires pretrial advocacy. The report provides benchmarks for that course. Some benchmarks address listening in the classroom: whether the student “actively and respectfully listens to peers and professor” and makes relevant comments that reflect, inter alia, insight about other students’ previous comments. Other benchmarks address performance on the skills such as taking a deposition (whether the student asks clear questions and uses effective body language and eye contact) and giving an oral argument (whether the student gives responsive answers to the judge’s questions and again uses effective body language and eye contact).

The end: Capstone class and standardized client interview

The Educating Tomorrow’s Lawyers Report is so enthusiastic about this program because graduating students in the program outperform new lawyers at least as measured on their client interviewing skills. The capstone class involves a “standardized client interview” in which students are assessed by the trained actor who plays the client. The assessment has two parts: (1) interpersonal and professional interaction such as whether the student listened to the client; and (2) skill at asking questions to glean specific facts necessary for the client representation. Appendix B to the Report contains the assessment form filled out by the trained actors/standardized client. It contains a number of questions regarding the lawyer’s demeanor and ability to gain trust and glean the correct information.

Question 2 on that assessment hits listening about as hard as you can hit it, with 1 representing “strongly disagree” and 5 representing “strongly agree”:

I felt the lawyer listened to me.

1            2           3           4           5

The students who completed this program, regardless of their LSAT scores and other entering credentials, outperformed lawyers with 1-2 years of experience who also completed a standardized client interview. They received higher scores (statistically significantly higher) on the criteria of their professional communication skills such as listening and building trust. They received significantly higher scores on their ability to glean the relevant information from the client.

The Educating Tomorrow’s Lawyers Report proclaims that these students are more ready to “hit the ground running” as a result of the program. The Report does, however, acknowledge obstacles to implementing such a program on a broader scale outside the context of the close-knit New Hampshire legal community. The Report suggests that the Webster program’s innovations could be unbundled and implemented in a more modular fashion, on a smaller scale. The key elements to preserve would be “the combination of formative and reflective assessment in a practice-based context and a focus on collaboration between the academy and the profession.”

A previous post about another initiative of Educating Tomorrow’s Lawyers can be found here.

Where competence and character come together

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The nice thing about Twitter is you can learn from events you can’t actually attend. Today Stephen M.R. Covey (son of the 7 Habits guy) spoke at the “DEXIO” conference in Canada: Developing Excellence in Others. This slide from Covey’s talk caught my eye:

(HT to @ITCatherine for the slide.)

Covey’s list of 13 leadership behaviors wasn’t specifically aimed at lawyers as leaders, but it might as well have been. The behaviors were organized into three major categories — competence, character, and the convergence of the two.

Competence was an interesting category and one that will feel good to many lawyers because we are generally very smart and good at the tasks of lawyering. But being competent isn’t enough to succeed in a collaborative work environment. UC-Hastings Dean Frank Wu wrote about this in his Huffington Post column on Why Law Firms Fail. Likewise, while character is essential, it’s also not enough by itself to make a good lawyer.

The convergence category was the payoff of this slide. While competence and character are obviously indispensable to the work of a legal professional, each on its own is not enough. On the slide, Covey lists three behaviors where competence and character come together:

  • listening first
  • keeping commitments
  • extending trust

Obviously I was excited to see listening on that list. Good listeners are highly competent, and good listeners also show great character. Or we could state the opposite: Poor listening can lead to incompetence, such as by not being able to get results because crucial facts or motives were not perceived. (Ouch.) And poor listening may be perceived as disrespectful and therefore a sign of poor character. (Double ouch.)

But the deeper point here is about what it means to be a “high-trust leader” (the title of Covey’s slide) and to develop excellence in others (the theme of the conference). For lawyers responsible for developing excellence in others, what behaviors do they use to do so? Some may take a bit of a muscular attitude toward developing excellence: “I’m going to model it and you can watch and learn.”

Or a senior lawyer may effectively “teach” excellent swimming by throwing juniors into the pool. This approach was apparent in a training video from Hogan Lovells shown at the 2016 American Association of Law Schools’ Annual meeting (video at minutes 8:30-16:10) :

In that video, a senior lawyer was faced with a potential conflict over work allocation among two juniors on his team. To get excellence from this team, he was going to have to go beyond being a good lawyer and nice guy. His response to the conflict? Something along the lines of: “They’re adults; they’re going to have to work this out. I don’t have time for it.” So this guy was clearly not what Hogan Lovells was offering up as a great example of leadership. Maybe he could have used a little more listening, a little more trust-building. He seemed like a good lawyer — very competent and unassailable character. But something was lacking in the way he approached the situation. Maybe it was those behaviors at the intersection of competence and character.

Writing this post made me want to read Deborah Rhode’s book Lawyers as Leaders. For those who have, what would Rhode say about the behavioral categories in Covey’s slide above? How would she approach the hands-off lawyer attempting to lead a team in the Hogan Lovells video?

Thanks to Jennifer Kahnweiler for correcting an earlier version that misidentified Stephen M.R. Covey as his father, Stephen Covey.

Defining success for new lawyers

Jennifer Romig1 Comment

The state bar where I am licensed just blast e-mailed a survey for the Educating Tomorrow’s Lawyers project of the Institute for the Advancement of the American Legal System. According to the survey e-mail, this project has three goals:

  • finding out “what law graduates need to launch successful careers in the legal profession”
  • creating “models of legal education to better fulfill those needs”
  • identifying “tools legal employers can use to make better hiring decisions”

The point of the survey is to clarify what “skills, characteristics, and competencies” are necessary for new lawyers in their first year of practice. The survey addresses a myriad of potential competencies from legal research to finance and accounting to personal resilience. Survey participants are asked to rank each item on a four-part scale from immediately necessary for new lawyers to not relevant (as in not relevant ever, in the survey participant’s area of practice).

The list of potential competencies is fascinating; just taking the survey should be a thought-provoking experience. Legal employers who have set objectives for new attorneys’ professional development — or who want to set such objectives— should be following this survey very closely. Lawyers who want to reflect on their own individual strengths, weaknesses, and possibilities should find it informative as well.

The survey questions were arranged by category, and several questions hit on listening either directly or indirectly. In the communications category, the survey asked about the skill of listening “attentively and respectfully.” In the category for emotional intelligence, the survey asked about reading and understanding others’ subtle cues as well as exhibiting tact and diplomacy.

If you have the opportunity to fill out this important survey, I urge you to do so. Educating Tomorrow’s Lawyers is making a major constructive effort to address the challenges “we” — defined broadly by me to include law students, law schools, lawyers, legal employers, and the clients eventually served by all of the above — together are facing.

Here is more information about the Foundations for Practice initiative. 

Mindfulness and mental chatter

Jennifer RomigLeave a comment

Listen Like a Lawyer is headed into that time of year when it’s going to be difficult to maintain weekly posts. Being too busy has a detrimental effect not only on one’s blogging goals; it can also interfere with communication. And since lawyers fall into from the “busy” trap at least as much as the average person and probably a lot more, this is a good moment to think about what that does to us and how to respond.

Seeking some wisdom on this topic, I started to check out Scott Eblin’s new book Overworked and Overwhelmed: The Mindfulness Alternative. This book seems kind of like the “7 Habits” equivalent for the mindfulness movement.

After digging into the book, I was going to start by exploring the concept of “mental chatter.” Mental chatter is also known as “monkey mind” or (less memorably) “discursive thoughts.” Basically it means random disorganized thoughts running through your head. Should we listen to them? Or ignore them? (Is that even possible?) These random thoughts are obstacles to mindfulness—defined as “the awareness that arises by paying attention on purpose in the present moment and nonjudgmentally” (Eblin quoting mindfulness pioneer Jon Kabat-Zinn). Also from Eblin:

Mindfulness is about “putting yourself in a position to be more aware and intentional about what’s really going on inside and what, if anything, you want to do about it.”

And then I had two back-to-back days that were busier than any in recent memory. They reminded me of the days back in law practice when I had three filings due in three different courts at 5 p.m. on the same day. There was no time to be mindful! Or so it seemed. The day was actually too busy for random mental chatter because there was too much to do requiring full focus. I tip my cap to the legions of practicing lawyers who handle these types of days year in and year out.

What is the solution? It’s not “finding balance.” On this, I like what Eblin has to say:

[I]f you’re an executive, manager, or professional with a demanding job, you’re about as likely to find balance as you are to be a purple unicorn. The reason is that the world and life are both fast moving and ever changing. In that environment, balance, at best, is a temporary and fleeting state. Instead of seeking balance, try to find a rhythm instead. By focusing on rhythm, you acknowledge there are times when your pace is going to be much more oriented to work, home, or community and there are times when the counterpoints of other aspects of your life come to the fore.

It’s also not about using mindfulness as a Band-Aid. Techniques such as deep breathing can help with reducing stress in specific situations, but mindfulness really means something broader. For example, having consistent routines—like sleeping and exercising—provides resilience on days that swing to the painfully hectic side of the pendulum.

And if mindfulness is about awareness, then we need to think about it when we think about listening. Eblin has some interesting thoughts on different styles of listening, and Listen Like a Lawyer will delve into those on another day.

Here are some additional resources on mindfulness:

The Berkeley Institute for Mindfulness in Law

Becky Beaupre Gillespie, Mindfulness in Legal Practice is Going Mainstream, ABA Journal (Feb. 1, 2013)

Susan Moon, Moonlighting: Mindfulness for Lawyers and the Jedi Master, Above the Law (August 12, 2014) (featuring Jeena Cho)

Robert Zeglovitch, The Mindful Lawyer, ABA GP Solo Magazine (October/November 2006)

Scott Rogers, The Mindful Lawyer: Practicing Law with Presence

Chris Bradley, Jeena Cho on Zen Lawyering, Lawyerist (June 24, 2013)

Jeena Cho, The Anxious Lawyer (ABA forthcoming 2015)

Shalini Jandial George, The Cure for the Distracted Mind Why Law Schools Should Teach Mindfulness, 53 Duq. L. Rev. (forthcoming, winter 2015).

A myth about listening and learning

Jennifer Romig2 Comments

Listening is a loser, at least according to the widely circulated Pyramid of Learning:

Slide1

I’ve been hearing about the Pyramid of Learning — also known Dale’s Cone of Learning — since I was a child. Yet it has a problem. Specifically, a lot of credible people believe it to be “zombie learning theory that refuses to die.”

Digging through the evidence to find out exactly what is true turns out to be difficult, partly because there are just so many sources that repeat these numbers. One of the best I have seen is by Candice Benjes-Small and Alyssa Archer on the Association of College & Research Libraries blog (these are the folks that called the learning pyramid a “zombie learning theory”). They gather sources and trace how this idea started as a conceptual model about conveying information at various levels of abstraction. There were no numbers making any retention claim. At some point, most likely during World War II, the graphic of the pyramid emerged with numbers attached to it representing retention percentages.

The graphic of the pyramid and numbers makes it feel irresistible. Matching the strength of their appeal with a strident attack, Will Thalheimer has described the pyramid as “dangerous” and a “fraud” on his blog Will at Work Learning. A fairly comprehensive timeline of debunking sources can be found at the Institute for Learning Professionals. The American Society of Engineers published a conference paper with a detailed, balanced refutation including graphical representations of where these numbers appear to come from.

In her textbook Designing Information Literacy Instruction: The Teaching Tripod Approach (2014), Joan Kaplowitz commits the debunking to print:

As appealing as that notion [of the learning pyramid] might be, an exploration of the literature shows there is no solid, research-based data to support it. 1

Kaplowitz goes on to suggest the numbers themselves contain the seeds of their own destruction:

Even the numbers themselves should make us raise an eyebrow and question the so-called data. The percentages are just too perfectly distributed with each number being a multiple of 10 and the spacing of categories somewhat even to have arisen from any real-world experimentation.

That’s a lot of debunking, but is it enough? The appeal of the learning pyramid creates a pedagogical Scylla and Charybdis: If you tout these numbers, many teaching faculty will discount your credibility. But if you doubt the numbers, you may lose your connection with other faculty who embrace them. Benjes-Small and Archer advise “treading carefully.”

What does this mean for lawyers and law professors?

We are experts in being precise with words as well as being skeptical about claims. So we can avoid broad assertions of the pyramid’s scientific truth.

We can be careful in how we present information, testing it on audiences when possible and relying on our own experience as a guide. For example, showing a text-heavy Power Point while simultaneously reading the words is terrible. it doesn’t reinforce the information; it creates competing streams of information and, in a broad sense, is just plain annoying.

We can rely on more recent and more specific research into information retention. Not surprisingly, studies support the use of images: “Humans can remember pictures with 90% accuracy in recognition test over several days, even when the images are presented for only a short time during learning.” This is from Doug Linder and Nancy Levit’s The Good Lawyer: Seeking Quality in the Practice of Law, citing a study that is about 1000 percent more scientific than the cone of learning (as well as 1000 percent more difficult to read and understand). The science confirms the art of lawyering, as recounted by Linder and Levit:

Images are so effective to effective communication that David Ball contends a “trial attorney without images is like an art book without pictures.”

The fundamental truth behind Dale’s original concept is that information can be presented in many forms ranging from the concrete to the abstract. Whether teaching a class, making a presentation to clients, or arguing to a jury, we can “mix it up.” That’s not scientific, and there are fancier ways to say it, like Benjes-Small and Archer’s recommendation: “Think multimodal.” However it is phrased, this broad recommendation is more reliable than a neat set of mythical percentages.

  1. Kaplowitz cites Char Booth, Effective Teaching, Effective Learning (2011); James P. Lalley and Robert H. Miller, “The Learning Pyramid: Does It Point Teachers in the Right Direction?” published in volume 128 of Education (pages 64-79) in 2007; and Michael Molenda, “On the Origin of the Retention Chart” in volume 44 of Educational Technology in 2004. ↩

Steal their listening

Jennifer Romig6 Comments

Keith Lee’s book The Marble and the Sculptor: From Law School to Law Practice (ABA 2013) is a bracing, honest, challenging compendium of advice for new lawyers. I would strongly recommend it to upper-level law students and new lawyers. (See also his blog, Associate’s Mind, as well as his columns in Above the Law.) One chapter in Keith’s book that caught my eye is “On the Importance of Stealing.”

In addressing new lawyers, Keith advises the following:

“[S]tealing is an essential skill for you to develop.”

Not for larceny, of course, he says, but “within the framework of learning and growth.” The objects of this stealing are varied: “other lawyers, CLEs, books, anything really.” New lawyers should “steal their pattern of success.”

This is great advice. But it’s easier in some areas than others. We can look at a great legal brief and break down how each section and each sentence works. We can watch a great advocate and recognize skillful pauses and variations in tone. We can admire a senior lawyer who knows literally every statute and case in a given area of expertise and can assemble and reassemble them instantly in response to any factual question.

What about listening?

Listening is hard to observe and very hard to measure. Speaking and writing are productive – i.e. observable – communication skills. Listening is one of the two receptive communication skills, along with reading. “Listening is a hypothetical construct, something you know exists but you can’t physically see. You can see only the behavioral indicators supporting its existence.” This is from Debra L. Worthington and Margaret Fitch-Hauser’s textbook on listening.

So how do you steal from a hypothetical construct?

The behavioral indicators are a place to start.

This is a complex process: you’re observing affirmative actions such as making eye contact, using appropriate body language, asking questions, and providing “discourse markers” such as “um-hm” that encourage conversation. But you’re also observing what the listener doesn’t do: noticeably look away, check a smartphone, interrupt. Noticing what isn’t there is very, very difficult. As Nobel Prize-winning psychologist Daniel Daniel Kahneman tells us, “WYSIATI”: What you see is all there is.

The ease of perceiving what is there may partly explain why active listening is such a popular listening concept. It has a set of specific repeatable, measurable behaviors that go with it, such as repeating what the speaker has said. If you watch a skilled active listener, you can steal the method. But note how this is not really stealing the person’s listening skills. It’s stealing the productive act of speaking in a certain way, by repeating what the listener just heard.

The most important components of listening are hidden: being aware of and receiving the information, placing it into context with one’s previous knowledge, evaluating and (perhaps) remembering the information, and responding. These elements of listening are drawn again from Worthington and Fitch-Hauser’s MATERRS model of listening.

It’s hard to steal someone’s level of awareness. Again here, specific affirmative behaviors may be the only practical proxy. Making eye contact is a sign of awareness, for example. The educational-reform model KIPP teaches children a set of specific classroom behaviors that include “sit up,” “track the speaker,” and “nod your head.”  Body language can shape not only communication behaviors but actual brain chemistry, as Amy Cuddy famously described in her TED Talk and other work on “power posing.” 

The “s” in the MATERRS listening model stands for “stay connected and motivated.” To be a good listener, you have to want to listen.

But how can a person “steal” someone’s else’s motivation? Maybe the answer is an instrumental one: you can observe what their good listening does for them. Specifically, you can observe how you feel when you interact with a skilled listener.

In The Marble and the Sculptor, Keith Lee emphasizes communication — actually over-communication — with clients. This means keeping the client informed, of course. It also means taking time to get to know the client: “Take time out to learn the stock price, industry, day-to-day culture, players and overall goals of your client. Visit their offices and plants. Do it free of charge.”

This is one of Keith’s many kernels of advice to consider stealing. (Actually he got it from and attributes it to Dan Hull of What About Clients.) Before going on an outing to spend the afternoon at the client’s site, it’s a good idea to prepare. Study up on the client, of course. But also, consider inviting a great lawyer to lunch — someone whose client development and communication skills you know to be first rate.

And then steal their listening.

***

Note: I was grateful to meet Keith in person as he spoke to the legal blogging class I am co-teaching at Emory Law School. His advice on lawyering and legal blogging is first-rate (obviously!) and was received with great enthusiasm by the students. After seeing him interact with students, I can say Keith is not only a great speaker but also an excellent listener.

Core professional qualities of lawyers

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About a thousand law professors are gathering now at the Annual Meeting of the American Association of Law Schools. The first session I attended this morning was Incorporating Teaching Professional Identity into the Legal Education Curriculum, with speakers from Mercer Law School and the University of North Dakota School of Law. Both schools offer innovative courses in building a professional identity as a lawyer.

The new program on professional identity at North Dakota emphasizes twelve core professional qualities, which I quote here from their handout:

  • Adaptability/Deals with Unpredictability
  • Confronts Mistakes
  • Courage
  • Diligence/Reliability
  • Empathy/Compassion
  • Generosity/Public-Mindedness
  • Honesty
  • Humility/Respectfulness/Courtesy
  • Integrity Under Pressure
  • Loyalty
  • Patience/Perseverance/Resilience
  • Professional Objectivity/Sympathetic Detachment

I really love this list and wanted to focus the rest of this post on how listening relates to these core qualities. Interestingly, the list does not include anything about “communicates effectively.” I think the point is to talk about the essential character of the lawyer, which is separate and broader than the lawyer’s discrete skills like communicating effectively. The lawyer’s core qualities are broader and more significant than any one skill; they drive the lawyer’s individual actions and deployment of skills in many ways.

Here are my quick thoughts on highlights of the list in relation to listening.

Adaptability and Dealing with Unpredictability

To be able to adapt, the lawyer has to listen. This is easier at the beginning of a project, when the lawyer is beginning to create the narrative of the case or the strategic approach. It’s harder when the client and/or lawyer already have a narrative or strategy in mind. The best lawyers can hear explicit or implicit dissonance with their chosen narrative, and then assess the risk to that narrative.

Listening also helps with unpredictability, I think in the sense of asking questions and listening to the answer. Open-ended questions may tease out that unpredictability and let a lawyer prepare for it. Closed questions that lead the conversation in a certain way may mask unpredictable facts or preferences, setting up nasty surprises later.

Courage

Lawyers have to deal with very difficult facts sometimes. The setting may be a courtroom where a witness recounts painful testimony or a law office where a client shares an uncomfortable truth or a mediation room where harsh words are exchanged or an icy test of wills becomes apparent. The lawyer has to have courage to face these situations and listen with professional body language and a problem-solving demeanor, even if that lawyer’s personal preference would be to go anywhere else in the world.

Diligence

To do a thorough job, the lawyer has to set up sufficient time for fact-investigation including, possibly, interviews. And the lawyer should use judgment to decide how to go about collecting facts, whether by e-mail or phone or face-to-face meetings.

Empathy/Compassion

Listening like a vacuum cleaner sucking up information is not, by itself, effective listening. The listener may be primarily interested in fact investigation and analysis, but listening with empathy will almost always be more professional (as a value) as well as more effective (as a skill).

Generosity

Giving time to listen is a form of generosity. Giving undivided attention during that time is more difficult and therefore more generous.

Humility/Respectfulness/Courtesy

Effective listening is all of these things. We’ve all witnessed situations with a bad listener who interrupts to ensure everyone gets the benefit of his or her “wisdom.” Interrupting is a little more complicated than that, though, because some forms of interruption show engagement with the conversation. Effective listening, like professional identity more broadly as discussed in this session, is complex and holistic and cannot be wholly addressed by a set of steps or distinct, invariable behavior rules.

Patience

At times, listening is hard. That’s partly because people speak more slowly than our brains want to process information. (A whole separate blog post or posts will cover this idea later. It’s a huge component of why really effective listening can be so hard.) Effective listeners may need to show explicit signs of patience, such as body language and encouraging responses. Effective listeners may also need to struggle with their own intrinsic impatience due to the differential between how fast they hear the information and how fast they are capable of processing information.

Perseverance

Many people have mentioned to me that the best listeners are able to hear what’s not said. That’s partly an intellectual skill. But perseverance helps–asking questions in different ways, listening with discernment to how a person says something, and defining the gap. That’s just one specific point where perseverance and listening intersect. Being able to withstand a 4-hour conference call is another form of perseverance.

Professional Objectivity and Sympathetic Detachment

Effective listening means limiting the influence of one’s preferences and biases. It means being empathetic while not becoming so wrapped up in the narrative that one’s objectivity is compromised. The lawyer’s role is a complex and difficult one, and the seeming paradox of “sympathetic detachment” is just one illustration of the fine line lawyers must walk.

Please feel free to use the comments for sharing more thoughts on listening and how it relates to the core qualities of lawyering.

Thanks again to Professors Patti Alleva and Michael McGinniss of the University of North Dakota and Professors Tim Floyd and Patrick Longan, and Dean Daisy Hurst Floyd of Mercer. I probably won’t be able to blog in this depth again during the conference but will try to at least tweet further thoughts of interest on listening. Listen Like a Lawyer’s Twitter feed can be seen here on the blog on the right-hand panel.

Resolve to do more than “active listening”

Jennifer Romig2 Comments

Lawyers are not stupid. They know that listening is important to their professional success. In fact, when a recent study asked about 100 U.S. and Finnish lawyers to assess their own “listening competence,” they answered realistically, ranking themselves average to good. They supported these rankings with qualitative answers so closely linked to their work as lawyers that the authors of the study concluded they were really answering a different question focused on their “professional listening competence.” The study is Professional Listening Competence: Promoting Well-Being at Work in the Legal Context by Sanna Ala-Kortesmaa and Pekka Isotalus, published in the International Journal of Listening.

The study by Ala-Kortesmaa and Isotalus is quite interesting and will be addressed in a longer post later in 2015. For now, here at the end of 2014, it offers a gem to take away as a potential New Year’s Resolution:

Active listening is the wrong answer. Or at least it’s not always the right answer.

Listening competence requires a broad range of skills from cognitive strengths such as memory to emotional (“affective”) strengths such as being able to focus on the conversation partner. And listening competence requires the listener to adjust behavior to the situation, using a variety of approaches.

People—including lawyers—generally do understand that they need to adjust their listening to the situation. The problem is the widespread belief that the way to do this is by active listening.

Active listening is focused on other conversation partners, with the goals of “adopting the emotions of others or interpreting their thoughts and meanings.” (This language is from the Ala-Kortesmaa article; the original source of this critique is by John Stewart and Milt Thomas, summarized here.)

What is often more effective is “dialogic listening.” Dialogic listening focuses on the shared aspect of the conversation. It explores what the other person is saying, not to crawl inside that person’s mind or try to paraphrase meaning but rather to create shared understanding. It’s more open-ended. It tends to be less manipulative. According to the original source on dialogic listening, Stewart and Thomas, the practice of dialogic listening means encouraging conversation partners to say more, using metaphors to reach new understandings, asking the conversation partner to paraphrase (rather than paraphrasing for them), and exploring the context behind the conversation partner’s statements.

One difficulty for attorneys that Ala-Kortesmaa and Isotalus point out is to find out if their conversation partner is communicating dialogically. This is the idea of the dual role of listening. The article implies what most attorneys will have experienced: sometimes they have to communicate with people who aren’t communicating in anything close to good faith. Or, it’s hard to communicate openly and non-manipulatively with someone who is trying to manipulatively guide the conversation toward his or her own goal. (Stewart and Thomas admit that dialogic listening itself can seem manipulative. So that goes back to the idea that however one labels communication, if it’s not good-faith communication then the labels really don’t matter.)

Throughout my time blogging here at Listen Like a Lawyer, I’ve been wanting to take a hard look at active listening. It is such a popular listening concept, yet there seems to be a subtle kind of domination in restating someone’s thoughts, either in the same words (now they are my words) or different words (let me fix that and put the right words on it). This topic needs further exploration because clearly active listening is a technique every lawyer does need, and great communicators can do active listening in good faith, without manipulation or domination.

But this insight from the Professional Listening Competence study seems like a great way to end the year. Active listening is not the formulaic answer to being a good listener. No single formula is the answer to being a good listener. Dialogic listening is worth learning more about, especially with client conversations, because it’s not about forcing meaning or extracting meaning but sharing meaning.

This New Year’s Eve post is inspired by Matt Homann’s “Looking for a Resolution?” post on the [non]billable hour. 

Artisanal listening

Jennifer RomigLeave a comment

McSweeney’s post last week, “I Am An Artisanal Attorney,” caused a ripple of laughter and sharing among lawyers on social media. If you have ever eaten small-batch honey from a meadery or had your mustache trimmed at a groomery or considered purchasing an ascot from an ascottery—or if you just need a laugh—stop and read it.

Courtesy Larry Hoffman/Flickr
Courtesy Larry Hoffman/Flickr

Author and very special attorney John Frank Weaver promises not just to write legal documents, but to hand-craft his own paper from local flax and write the text in ancient script using a feather quill and squid ink:

Don’t be lulled into a complacent life filled with more cheap, manufactured goods than you’ll ever need and lawsuits that don’t reflect your uniqueness. Insist on a life well-lived with food, experiences, and litigation that reflect people and skills, not factories and automation.

After I finished laughing, which took a good long time, I wanted to make a semi-serious point. Weaver’s comic post taps into anxiety about new realities and related fears such as “Here Come the Robot Lawyers.”  In contrast, an artisan is “a person or company that makes a high-quality or distinctive product in small quantities, usually by hand or using traditional methods.” How much of the legal market is and should be artisanal — or “bespoke” — and how much should be standardized or automated is a huge, ongoing, and critically important debate stoked by Richard Susskind and many others. (Here’s one article from the ABA’s Legal Rebels on Susskind’s Tomorrow’s Lawyers tapping into this debate.)

Even for those of us who, at heart, want to practice on the bespoke end of the spectrum, we might agree that lawyers don’t need to squeeze their ink out of local squids. They don’t need calling cards printed on Himalayan pressed paper. But it is a requirement of the profession to provide clients with legal services that are customized to the facts of the case. It is an ideal of the profession to tailor these services to the personality and needs of the client as well. And “thinking like an artisan” can be an excellent marketing practice for lawyers because clients may screen their lawyers based on objective criteria and then choose their lawyers based upon more artisanal criteria such as values and fit.

Drawing on what it means to be an artisan, one of the lawyer’s most “traditional methods” is quality face time with people. This relationship building is intertwined with the broader tradition of lawyer as trusted advisor. And one of the traditional techniques of the trusted advisor is listening. Listening is most often and most effectively done in small quantities, such as one-on-one meetings. It takes time and attention to focus on a client and make that client feel special. It takes skill to deploy active as well as passive listening and every other form of listening as needed in the moment. Being really listened to and understood makes a client person feel, well, special—kind of like some people feel when they sip cold-pressed juice infused with artisanal ice and nibble on a side of hand-crafted toast.