Bar exam prepResilienceSelf-care

Supporting those who failed the bar

It’s so difficult to balance empathy with advice. This post from Joe Regalia in the ABA Before the Bar Blog achieves that balance in addressing a very sensitive subject: life after failing the bar exam.

Joe acknowledges that the community of those who have failed the bar is something of a “secret society,” one that you can’t really understand unless you’re a member:

We need to have more respect for the toll failing a bar has on real lives. This is not just getting a bad grade. These people need our support.

Joe goes on to deliver a hopeful message—hopeful in the sense he compares failing the bar to getting a horrible flu but, eventually, recovering. And he describes some constructive advice for exactly how to do that.

This post came to my attention when Joe shared the reaction he’s gotten from the post. I’ll end here with Joe’s own observations:

The response to this article has been incredible this last year. It’s short and nothing special in the writing department. But I get a staggering number of emails from folks who stumble on it and ask to talk. Just this week I’ve chatted with three random people who wanted to talk about their experience.

I’m always struck by these conversations. I don’t do anything magical. I just listen and encourage. Tell them that all kinds of people have been where they are and give them a few practical tips for doing better.

But it always seems to help. For many of them, I think it’s just knowing that others have experienced this and that there is light at the end of the tunnel. Like many things in life, just having someone to listen goes a long way.

Joe-Regalia Joe Regalia clerked for several years in federal district courts and at the U.S. Court of Appeals for the Ninth Circuit. These days he keeps his plate full as an adjunct law professor, an associate at the firm of Sidley Austin, and a frequent speaker and consultant on legal writing and legal test-taking.

 

 

 

 

Cross-cultural communicationEmotional intelligenceEmotional laborMentoring

Ready to listen

How can I be an ally? How can I let people know I’m really ready to listen?

At the Georgia Association for Women Lawyers’ CLE on women in leadership held today at the State Bar of Georgia, several participants shared their desire to help and to listen. Discussions around #MeToo are bringing out stories suppressed sometimes for decades, stories often peeled back to more layers of race and class. Although there are no easy answers, many agreed on the value of listening. What can we do? One thing is we can listen, actively, to one another’s stories.

Then a question was raised: what if you’re ready to listen but others aren’t sharing?  “I do want to listen, I am ready to hear. But sometimes I feel people aren’t willing to speak. Maybe they think I won’t understand, or they put up a defensive barrier. How can I prove I really want to listen?”

Listening is such a gift. But—as someone pointed out from the audience—showing up to listen does not obligate others to share their stories. Receptive body language and an open heart does not guarantee others will reciprocate by speaking. Nor should it. If listening is a gift, it must be given without expectation of repayment.

At a different CLE last summer, through the International Listening Association’s annual convention, I co-presented a CLE on “Better Listening for Better Lawyering.” One of the most popular parts of the CLE, according to the feedback, was discussion of the “Preparing to Listen” checklist. People—especially task-driven, problem-solving, professional people like lawyers—just love checklists. You have a focus, broken down into small parts. You can check off the boxes. If you do everything on that checklist, you’re prepared to listen. Right?

That checklist is great, and many people are failing miserably at doing half the tasks it lists. Atul Gawande popularized checklists as a lifesaving measure in surgical units, citing evidence they work because they catch “the dumb stuff.” In the world of listening, “dumb stuff” means looking at your phone or starting a conversation by telling someone they don’t look like a lawyer—another story shared at the GAWL session today.

But today’s conversation also revealed, yet again, that listening is more than checking off boxes. Avoiding the “dumb stuff” is not quite the path to the authentic, vulnerable speaking and listening.

Panelist Gwendolyn Keyes Fleming offered a response that transcends checklists and neat reciprocal obligations: Readiness to listen means being there. It means finding “small points of common interest” with the people around you. It means putting in the work “day by day.”

Someone chimed in that change comes from individual relationships, not the top down. I’m not sure I agree with giving up on top-down measures. But I agree change won’t happen without the relationships—the kind that are built through small, incremental, meaningful gifts of attention and recognition. And perhaps, when the moment is right, speaking and listening.

 

AdvocacyJudicial listening

How Should Judges Listen to Victim Impact Statements?

Many thanks to Rhani M. Lott of Emory Law School for this guest post.

“I do want to thank you, first, Judge Aquilina, for giving all of us the chance to reclaim our voices. Our voices were taken from us for so long, and I’m grateful beyond what I can express that you have given us the chance to restore them.”

Victim Impact Statement of Rachael Denhollander

In “In Defense of Victim Impact Statements,” Professor Paul G. Cassal identifies four main justifications for victim impact statements:

First, they provide information to the sentencing judge or jury about the true harm  of  the  crime—information  that  the  sentencer  can  use  to  craft  an  appropriate  penalty.  Second, they may have therapeutic aspects, helping crime victims recover from crimes committed against them.  Third, they help to educate the defendant about the full consequences of his crime, perhaps leading to greater acceptance of responsibility and rehabilitation.  And finally, they create a perception of fairness at sentencing, by ensuring that all relevant parties—the State, the defendant, and the victim—are heard.

In light of the Nassar trial, I have been thinking a lot about how a judge should handle victim impact statements.  I’m not alone.  My social media feeds are full of lawyers celebrating and excoriating Judge Aquilina.  One career public defender had this to say:  “Grandstanding on a grand stage, let’s not forget that a judge’s role is to administer justice, not advocate for one side or the other.”  Another friend, a family law attorney, wrote, “[t]he way that Judge Rosemarie Aquilina handled the survivors in this case brings me hope for our justice system.

HeadshotAt its heart, I think this is a conversation about how we think the judge should “listen” to victim impact statements.  In turn, how we want the judge to listen depends on how we prioritize the purposes of victim impact statements.

If we are chiefly concerned with victim impact statement’s utility in providing information that the sentencer “can use to craft an appropriate penalty,” then we want the judge to be listening to learn.  We will be disappointed if there does not appear to be a correlation between the statement and the sentence.  Santa Clara County Judge Aaron Persky finds himself facing a recall election at least in part because of his failure to listen and heed the pleas in a victim impact statement that attracted national attention in the Stanford rape case.

If we believe the “perception of fairness” is paramount, then we might think the judge should listen attentively but not engage with the victims.  For example, Rachel Marshall criticizes Judge Aquilina for the way she “talked to victims as though she were their confidante . . .” Rachel Marshall, The Moment the Judge in the Larry Nassar Case Crossed a Line (January 25, 2018).  Ms. Marshall is worried about “future defendants who shouldn’t get sentenced harshly but may face judges too swayed by their own emotional reaction to victims . . .”  A former colleague I spoke with has the same concern about judge’s being “swayed by their emotional reaction,” but for a different reason.  She prosecutes crimes against women and children and has seen judges swayed by emotional pleas for leniency from domestic violence victims even when that leniency is not in the best interests of justice or the victim.

If we believe that “help[ing] to educate the defendant about the full consequences of his crime” is an essential aspect of victim impact statements, then we may expect the judge to be unobtrusive.  If the defendant is the primary audience for the statement, then it will be upsetting if the statement becomes too much like a conversation between judge and victim.  We may also find it inappropriate if the judge’s commentary doesn’t leave room for “acceptance of responsibility and rehabilitation.”

Finally, if we highly value the therapeutic aspects of victim impact statements, then we might demand a judge engage in empathic and active listening.  We might appreciate someone who, like Judge Aquilina, “punctuate[s] each and every victim statement with some words of her own—a mix of praise, gratitude and support for the women who have come forward to address the court and, in many instances, Dr. Nassar himself, who has been a captive to it all from the witness box.”  Scott Cacciola, Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge (January 23, 2018).

Perhaps Judge Aquilina was not grandstanding; maybe she was just trying to maximize the therapeutic aspects of the process.  That doesn’t make her actions right or wrong, but considering it might help us understand why she “listened” as she did.

 

Legal communication

Suppressive listening: Book review of Darktown

Darktown by Thomas Mullen is the first book I’ve read this year, and I do recommend it. It’s a police-procedural suspense book set in Atlanta in 1948, the year the Atlanta Police Department opened a police precinct with the APD’s first Black officers. The APD, somewhat cleansed of its KKK elements (although not really), was a hostile, undermining, patchily corrupt group of colleagues who did not welcome these new officers in the least. Here’s a snippet from the New York Times’s review:

One incendiary image ignites the next in this highly combustible procedural, set in the city’s rigidly segregated black neighborhoods during the pre-civil-rights era and written with a ferocious passion that’ll knock the wind out of you.

One of the minor characters is a U.S. Congressman with a reputation for being an ally to the civil-rights cause. Protagonist Officer Boggs is investigating a murder victim’s possible connections to this Congressman. In pursuing a meandering and suspenseful path to the answer, Boggs comes to speak with a civil-rights activist who knew both the victim and the Congressman, described as such:

“We have written him a few letters, asking for better funding for Negro schools, in Atlanta and in the country. But I’m not holding my breath. Sometimes it’s the ones who claim they’re progressive who are the worst, because they act like they are the very boundary between the possible and the impossible, and they never let you cross them. Know what I mean?”

The story speeds past this tiny moment, but it gave me pause. It’s a kind of listening I’ve been thinking about a lot recently. One way to describe it is “suppressive listening.”

It’s the kind of listening that lends an empathetic ear. The listener does it all by the book, providing a comfortable setting and full focus, giving the speaker a chance to really be heard. It feels good to say what happened or what is needed, and not be judged or face retribution. There’s value in that kind of listening.

And then, the response: “I’m willing to take this up further. Here’s how I see it playing out.”  “This is important, but we are playing a long game and this may not be the time.” “Do you really want to do that?”

It’s phrased with empathy, and the listener may in fact experience empathy: “I want this whole system to change too—I wish we could tear it down. But I don’t want to make things worse right now either.”

The result of suppressive listening is that advocacy is suppressed. Complaints are suppressed. Listening provides an outlet for whoever is in need, but the listener also acts as a gatekeeper wielding (and preserving) power and discretion. Some ideas are never shared; some needs are never known. Some secrets are kept. Some become “open secrets.”

One message of Darktown is that mysteries may be neatly solved, but power does not let go, and institutions hold on to it by whatever means necessary. The white power structure of the 1940s responded to Black Americans’ attempts to vote—as well as simply to be seen in uniform marching as a U.S. veteran—with violence. There are some moments of connection in the book, but they are forged by action and by shared risk, not by talk alone, nor by listening. The conversations that restore and replenish are not the ones from activist to congressman or from black cop to white ally. A moment of quiet listening is shared between a mother and her adult son, telling him she sees his struggle and knows he is making a difference. She doesn’t hold the keys to what is possible, only what her son needs in that moment.

Law schoolLegal communicationLegal education

Tending your garden

Today my Emory Law colleague Ben Chapman and I launched the fourth iteration of our class, Advanced Legal Writing: Blogging and Social Media for Lawyers. This is a “cool class” (according to an upcoming issue of the Emory magazine) where students explore and practice the genre of legal blogging. Their final exam is to select a legal-blogging niche and then develop a WordPress blog with several thousand words of analytical and expressive content. In preparing my opening remarks for this year’s class, I was reflecting on this blog and what it has meant for me professionally and personally.

I launched Listen Like a Lawyer almost five years ago. (Here’s my first post.) My reason for picking listening as a niche was (1) there are already lots of great blogs about my original area of expertise, legal writing; and (2) listening is a hidden and under-appreciated part of being an effective (legal) professional and person.

The niche is admittedly challenging because it has many audiences:

  • law students who listen to lectures in big classes, then go out and try to work with supervisors and colleagues in externships and activities
  • new lawyers who may be assessed mostly on their technical lawyering skills such as taking depositions
  • mid-level and senior lawyers who need to manage teams, lead their organizations and the legal industry, and network effectively to bring in business
  • in-house counsel who routinely work with GCs and business teams, closing the distance between the business and legal mindsets
  • law professors who teach and write about communication and rhetoric
  • legal professionals such as paralegals and administrative assistants who, like all professionals, work more effectively with strong listening skills and who may face particular issues with hierarchical listening (or non-listening)
  • legal-marketing professionals who often demonstrate superior listening skills to anyone listed above but may also face hierarchies that may distort or block their contributions
  • legal innovators who advocate “disruption” and unbundling and other stuff like that—which ideally will include lots of listening at the design stage and will preserve some role for listening of “the efficient delivery of legal services”
  • professionals and future professionals in all fields who hope to listen to their own inner voices (when healthy to do so) and connect with others

It is quite a challenge to reach these diverse audiences. Luckily I am a law professor who is writing for many reasons, none of which includes delivering a hyper-targeted message to a single audience for marketing purposes. My goals are learning, sharing knowledge, developing knowledge, prompting conversation, promoting better lawyer-client relations, and encouraging more effective collaborative relationships in the legal industry. One lesson to students is to avoid clichés like the plague, but doesn’t this seem like a WIN-WIN-WIN?

I’ve been thinking about the blog a lot as its five-year anniversary approaches in summer 2018. Late last year, I was considering bequeathing it to a new editor or even retiring it. Some reflections over the holidays have convinced me I’m not ready to do that. It’s like my garden, and I enjoy tending it.

That metaphor is a great way to TL; DR the ideas from my scholarly article on legal blogging several years ago:

Traditional legal writing on behalf of clients is like growing a bonsai tree. There is artistry, history, culture, and technical craftsmanship. All of that means there are also a lot of rules. And it’s a creation on a pretty small scale; only a few people may ever see it.

Legal blogging, by contrast, is like a wildflower garden or cultivated rainforest. It’s a different kind of cultivation—which may look totally out of control but actually can achieve some unexpected and serendipitous results. Still, you have to work at it and shape it, or the wrong things will grow (or it will die).

Writing this blog really has led to some serendipitous results, and there is still a lot to say. The current political climate has led to initiatives like #ListenFirst. Through the International Listening Association I have met listening scholars such as Graham Bodie and Debra Worthington, who just published a giant tome on listening research. There is a growing body of legal scholarship on interruptions at oral argument and even what vocal pitch can tell us about the justices’ individual votes. Along those lines, technology is opening new possibilities such as wearable devices that record and quantify the interactions between colleagues. But at the most fundamental level, listening is a way to connect with people, which will always mean something.

So, this year I will continue to write about stuff like communication dynamics at work, specific listening techniques, listening and building community, listening for law-school performance, and listening as part of the legal-writing process. I will invite guest posts if and when I feel like it, and write basically anything I feel like writing about. I will try to stand back every once in a while and enjoy just looking at the result of my labor. And that, for any Law 851 students who may still be reading, is a pretty cool thing about legal blogging.

Someone else thought of the gardening metaphor too, in terms of blogging for business development. I like what they have to say about developing quality content over time rather than going for short-term fixes.

 

Client relationshipsEmotional intelligencein-house counselMentoringPeople skills

Lawyer as anxiety filter?

In-house lawyer @J_Dot_J has described it most directly:

A law student once shared a related concept to describe his coping mechanism, especially during finals:

“Some people are stress emitters. Some are stress receivers. I’ve learned I’m a stress receiver, and I have to stay away from the emitters.”

The common theme is anxiety. It comes from somewhere, and it goes somewhere. Is there any pattern to the movement of anxiety, and any way to manage it?

One possible answer to this question is “Bowen theory,” which is a theory of family systems that has been extended to the workplace as well. “Are organizations emotional systems also? It appears to be the case. Theoretically, all that is necessary to create an emotional system is spending time together.” This quote is from Roberta Gilbert’s The Eight Concepts of Bowen Theory, which provides the basis for the following summary:

According to Bowen theory, the family—or workplace—unit is the key unit of analysis, rather than the individual. This unit is really a system of interconnected people, and it has two characteristics:

  1. Whatever affects one affects each one in the system. That is, anxiety moves easily from person to person in the group.
  2. [System] members trade “self” into the family relationship in a “fusion” of selves.

You may stop here and say that your team at work does not have these characteristics. If you’re correct, then you don’t have a true workplace unit and Bowen theory isn’t going to be helpful.

But it may be worth asking in a different way: Does anxiety move within your workplace? According to Gilbert, “where the anxiety travels defines the limits of the emotional system.” And does your workplace stake a claim on the workers in the system to “donate” some portion of their selves for work? Does the workplace send a message to “be like us” or “think as we think”? According to Gilbert, an emotional system is made up of these donations of self so that the donates parts become available “more for the family than for then individual.” In this way, members of a unit lose self into the larger unit. More togetherness means more loss of self, and quicker transmission of anxiety.

(When reading about this loss of self and its connection to “groupthink,” I was immediately reminded of compliance challenges and the work of my friend, compliance attorney Scott Killingsworth, on how organizational culture is transmitted and replicated.)

Individuals in a system are healthier and more resilient to the anxiety passed around in the group if they retain some core “differentiated self.”  The concept of the self has two components: a “pseudo self” which is the part that is tossed about by the anxiety of the group and conforms to the needs of the group, and the “basic [or solid] self” which is the part that fights for individuality and stands up for beliefs and convictions. The solid self is the differentiated self. The more the pseudo-self dominates the solid self, the more anxiety that member will feel and will contribute to the system.

Here, if you’re congratulating yourself on being an amazing differentiated person who feels absolutely no influence from your workplace, you may want to double-check yourself for some sort of emotional Dunning-Kruger effect. Gilbert states that if you looked at differentiated selves on a scale of 0 to 100, most of the population hovers around about a 30 and 50+ would be extremely unusual. But this is just an estimate; Gilbert notes that it’s impossible to measure differentiation in one segment of time. The conditions of any given moment are too arbitrary, and you can raise the functioning level of an undifferentiated person by giving them a compliment, and you can lower their functioning by criticizing them.

Within any unit, members of that unit deal with anxiety in four automatic and familiar patterns:

  • Making a triangle among three people, where one is the “problem” (such as a child, or a recalcitrant employee, or an attorney viewed as a roadblock)
  • Creating conflict by refusing to give in on major issues, expending significant energy
  • Seeking distance by slowing down or stopping communication, while still remaining emotionally defined by the problem
  • Overfunctioning / underfunctioning, in which one partner becomes more dominant and the other more passive.

These methods of dealing with anxiety are not a problem unless they become habitual and repetitive “where no one knows how to get out of it.”

There aren’t many references to Bowen theory in traditional legal literature. After reading enough to write this overview, I think it deserves more study, particularly as the legal industry becomes more focused on systems and processes. The law deals with unpredictable, complex problems; designing a system for helping clients with their problems will be much easier if the system of legal professionals is internally efficient and not clogged with stress and disrupted by attrition.

In future posts, I will explore some more ideas from Bowen theory and how they may apply in legal teams. Please comment if this overview prompted thoughts or questions.

Legal communicationNarrativeResilienceSelf-careWork-life balance

Hygge for lawyers

Hygge has been called everything from “the art of creating intimacy,” “coziness of the soul,” and the “absence of annoyance,” to “taking pleasure from the presence of soothing things,” “cozy togetherness,” and … “cocoa by candlelight.”

Hygge is an atmosphere and an experience, rather than about things. It is about being with the people we love. A feeling of home. A feeling that we are safe, that we are shielded from the world and allow ourselves to let our guard down. You may be having an endless conversation about the small or big things in life—or just be comfortable in each other’s silent company—or simply just be by yourself enjoying a cup of tea.

Meik Wiking, The Little Book of Hygge: Danish Secrets to Happy Living (2017)

In my last post of 2017, here’s something I’ve wanted to do all year: write about “hygge.”

The quote above from The Little Book of Hygge gives a good sense of what it is; it’s also claimed as the reason the Danish people are apparently the happiest in Europe. It’s the opposite of self-help trends such as “eating clean,” according to The Little Book of Hygge’s publisher:

Hygge is about embracing things—enjoying cake, not checking work emails all weekend, spending time with friends and family. It’s about the simple, small pleasures that make life great, which perhaps sometimes pass us by.

For some, the holiday season is a time to embrace the hygge with family and friends. NPR has this article on how to host a hygge holiday party.

But the hygge experience does not have to be limited to a holiday respite. I had a really rough first semester in law school, and one saving grace was the hygge qualities of the rental house I shared with three roommates. We had lots of nooks with comfy seating, pillows and throw blankets, lamps all around with soft lighting, a friendly cat, tons of mugs for always-brewing coffee and tea, shared meals, and good conversation whenever you wanted, but no obligation to talk. While my perception of the 1L law-school environment got worse and worse, I was able to take comfort in our cozy home and the people in it. Looking back, the first semester of law school just totally sucked, and everything got better from there. I’m grateful to my roommates—now lifelong friends—who made the environment that helped so much during that initial low point.

Away from home, aspects of hygge can make an office more supportive. The Little Book of Hygge suggests maintaining a small office garden, adding a sofa rather than just office chairs, starting a Friday office potluck tradition, and—in a perfect world (that’s an editorial comment by me) even bringing your dog to work. One of the happiest lawyers I know started his own firm and does just that, pretty much every day.

IMG_7403

This is not my dog, but I stopped and had a hygge moment with him.

So having a “hyggelig” environment can help any lawyer with the behind-the-scenes wellness. Beth Padgett of South Carolina Bar’s Lawyers Helping Lawyers program wrote about hygge for lawyers in the March 2017 issue of the S.C. bar publication (page 9 here):

Many people find the work of improving their mental or emotional health (or even their attitude) to be daunting for a host of reasons. Hygge seems to be a simple and nonthreatening way to create some change.

Note: For those who struggle during the holidays, here and here are some suggestions on supporting them.

 

GenderLegal communicationPeople skillsProfessional identity

Listening in the Family

Last week’s allegations of sexual harassment against Judge Alex Kozinski brought a response by the judge:

“I treat all of my employees as family and work very closely with most of them.”

Invoking the family is not an entirely warm-and-fuzzy metaphor, as several have pointed out (hat tip to @gokpkd for pointing out this thread):

Family is both a place where people can let their guard down—this could mean everyone in the family, or just some, or just one. It’s also a place where ingrained patterns can replicate themselves over and over—for good, or for bad. The experience of being in a family sets up your framework, or “schemata,” for understanding what happens inside that family, as noted in Debra Worthington and Margaret Fitch-Hauser’s text Listening: Processes, Functions, and Competencies. For children, early family experiences also influence the way they communicate with everyone else in the world.

Families can be classified in two communication orientations, according to family-studies scholarship cited in Worthington and Fitch-Hauser:

  • Conversation orientation, in which all family members converse freely about a wide variety of subjects.
  • Conformity orientation, in which “a family stresses the importance of having homogenous attitudes, values, and beliefs.” Such families “stress[] the importance of hierarchy and clear rules.”

It struck me in reading reports on Judge Kozinski’s chambers that the environment sounds like the worst of all worlds: Judge Kozinski himself certainly appeared to take a broad and flexible orientation toward conversation topics, including but not limited to pornography. But clerks themselves were expected to conform, according to Heidi Bond’s account. She reports being asked to control her own reading preferences as the judge ordered; she reports the judge grabbed her arm and described her as his “slave.”   That’s not healthy. And the extent of just how toxic this environment was, for some clerks, continues to unfold.

Even for those not reporting harassment or heeding internal alarm bells prompting them to avoid the judge, the family metaphor could be troubling. I was reminded of another post on company executives invoking family:

Whenever executives talk about how their company is really like a big ol’ family, beware. They’re usually not referring to how the company is going to protect you no matter what or love you unconditionally. You know, like healthy families would. The motive is rather more likely to be a unidirectional form of sacrifice: Yours.

Months before these allegations against the judge, the “family” metaphor was being taken down by Sam Sanders (@samsanders). His thread (and many responses to it) explored how work as a family may really mean not only exploiting the powerless but also hiding what’s wrong and protecting secrets:

What is a strong and healthy family? Fitch-Hauser and Worthington describe a strong family as follows:

  • Commitment to the family and well-being of its members
  • Positive communication and the ability to engage in constructive conflict management
  • Regular expression and confirmation of affection among family members
  • Enjoyment of quality time together
  • A feeling of spiritual well-being
  • Ability to effectively manage stress and crisis situations.

This list reinforces that work may have some characteristics of a family. One would hope the workplace offers constructive conflict management and the ability to manage crisis situations.

But work is not family. Family is family.

Client developmentClient relationshipsLeadershipProfessional development

Executive Coaching for Lawyers as Leaders

Listen Like a Lawyer is pleased to share this Q&A with executive coach Greg Riggs. Greg is the former general counsel of a Fortune 100 company and he has also serve as Associate Dean at Emory Law School. Greg has devoted his career to professional development and now has a national practice as an executive coach with Novateur Partners LLC.

GLR Emory 2012 (2)Q:   My first question is very basic: What is executive coaching?

A:    That is a good question, and the answer is not obvious. There are many different types of coaches to help us with various aspects of our lives. We have all heard of athletic coaches, fitness coaches, wellness coaches, life coaches, and so on. Executive coaches work principally with professionals or leaders in organizations who want to do better at their jobs. They want to be more effective managers, team members, and performers. That is the scope of my approach to executive coaching.

Q:  What types of clients do you work with, typically?

A:  My practice tends to focus on senior and mid-level executives in the fields of business, law, and higher education. I have wanted to leverage the experience I gained from 35+ years in the legal, corporate and university environments and from serving as General Counsel in the C-suite of a Fortune 100 company. My clients have tended to be general counsels, law firm managing partners and other firm leaders, vice-presidents and above in large organizations, and university officials, including deans. I also coach high-potential individuals who are on their way to those positions.

Q:  The academic, legal, and business sectors all have different cultures and different ways of being effective. How do you work with people in those different sectors?

A: You’re so right that the cultures can vary dramatically in these different sorts of environments. But they all have one thing in common. That is, organizations in all of these areas need effective leaders to be successful.

Very often in the legal arena, people find themselves named to  leadership positions without really having had any training for the job. In law firms, for example, people who are terrific lawyers—high performers and high earners—are often the ones chosen for management positions. But they may have had no significant management experience whatsoever.

In the general counsel arena, people who have been really good in-house attorneys or outside attorneys find themselves in leadership positions and have to develop management skills on the fly. It’s the same with doctors in the hospital environment. Academic deans are another example. Deans who have been great academics, terrific writers, teachers, brilliant in what they do suddenly become CEO of a major, intricate, highly demanding organization. Executive coaches can be a very valuable resource for these academic leaders as they take on major challenges and handle dangers and traps they have never faced before.

Q:  There are an increasing number of classes and resources on law and leadership. But “law and leadership” is definitely not a common offering in the typical law-school curriculum. How would a lawyer or future lawyer get the information that they need for leadership when it’s not typically a part of their formal training?

A:  There are two sides to that question.

One of them is, where is the information? There are entire libraries and cottage industries built around teaching people how to be better leaders.

But then there is the application of that information. So it’s similar in a way to your own area of expertise, legal writing.  When we are in our 1L year in law school and we are trying to figure out how to gain our bearings in legal writing, we all take a course in legal writing and advocacy.  But I think I have heard you say that for many of us it is  a lifelong undertaking to be a really good legal writer.

It’s the same with leadership. We have to pay attention to what we are doing and apply principles that we learn that are meaningful to us. Then we have to  receive feedback and do it better next time. And next time might be this afternoon or tomorrow, because we are being called upon to exercise our leadership skills constantly when we have management positions.

Q:  What are some of the common themes that you seek get across with the professionals you coach?

A:  The number one headline is to develop an approach that allows you to leverage your own strengths and talents to find and bring your own personal best game.

We have all seen people who read books on leadership and then try to fabricate their approach to leadership using textbook methodology.  It rarely works very well because there is often a lack of authenticity. To be really effective we have to be ourselves—our best selves to be sure.

And the key there is to identify and then develop and bring out into the workplace those core skills, core talents, traits, and dispositions that we have inside of us in a way that is most effective in our interactions with other people.

Q:  Well, I can definitely understand how the idea of being authentic and being yourself is attractive. But what about a person you might work with who needed to work on a weakness—such as ineffective listening skills.  How would you go about working with someone on their listening?

A:  So listening is a vitally important skill, and very few of us do it very well. But let’s back up a little bit before we actually get to the act of listening, because when we talk about listening a preliminary question is: what are we listening for? What are we trying to capture in the listening enterprise, the listening moment?

One thing that I see fairly commonly for people who want to be more effective listeners is, they haven’t had a broader conversation with themselves along the lines of, what am I missing?  Sometimes people are perceived as not being good listeners when actually the issues they are grappling with are much broader. It is my observation that most don’t stop to ask ourselves, what are my blind spots? And, what do I need to get better at?

If I could come up with one word that applies to most of us, describing a skill that we need to be better at, it’s this: awareness. Being aware of how we are coming across to other people, for example. Many of us are not very good at discerning that.

Once we get a feel for how we come across in different settings, then we might ask, how are we affecting other people? How is our behavior being received by others? How is what we say landing on other people? We are often not very aware of that.

And we are also not aware of what’s happening in our minds.  We don’t notice what are we thinking about and what’s happening with our emotions. Without that awareness, we behave in ways that are often suboptimal.

So when we are listening to other people, there are various levels of listening. Often when we think we are listening it is at a superficial level with  a lot of distracting chatter going on in our minds. We are not really focusing; we are listening to ourselves in our minds more than we are listening to the other person.

Then there is a deeper level of listening, where we are really focused on paying total attention to what the individual is saying, not thinking so much about ourselves or our to-do list or how what the individuals is saying is affecting us.  We can call this “Level 2” listening.

And then there is a third level, a deeper intuitive listening where we are capturing—often without even being aware of it—the emotions of the other person, the way of thinking that the other person is displaying, the micro-expressions that we all have that reveal things about each other that we often fail to notice. If we can bring good listening skills to the workplace, to the dozens of conversations we have every day, we can capture much more information, use it much more effectively, and be more successful at what we do.

That’s a long answer to a good question.

Q: Someone who can get to that third level of listening is in a much better position to be professionally effective. But what if you have someone who is just not that good at listening? What can that person do to become more skillful?

A:  That is one thing that executive coaching is all about. I mean, if we could read a book on better listening, or on being a better conversationalist, on paying more attention, or focusing on the other person and then actually apply that knowledge in our daily interactions, that would be great. We have all read those types of books, but then do we apply the learning? Usually not, or at least not consistently.

How executive coaching is different than say seminars and courses and symposia is that it involves enabling feedback over an extended period of time. In my experience, it usually takes six to twelve months of leadership coaching for someone to notice consistent improvements in their effectiveness. Coaching engagements sometimes last longer than 12 months, but six months seems to be about the minimum length of time to heighten our awareness, learn to focus keenly on our interactions with others, and draw in the feedback we need to fine tune our approach. So that’s where coaching can really help.  We all need a partner, a thought partner, a mentor, a sounding board, a traveling partner as we explore better ways to be a leader. That’s what a coach does.

Q:  True, so that was actually one of my questions. I think a lot of people might want to be a better leader or a better communicator, but they may not have access to an executive coach. Can a person sort of “self-coach”? How can you get better on your own?

A:  It’s a great question. Let’s examine one example. Let’s say I want to be a better listener. People have told me I need to be a better listener. Okay, the next step is to make a decision: “I am going to be a better listener, and I am going to make a commitment to myself and maybe to others to do that.”

What’s the next step that we can do without seeking any help, without getting on anybody else’s calendar?  So we begin let’s say for the next week to make a commitment: “I’m going to experiment this week, and I am going to pay attention to listening and see what I can figure out, see what I can observe. I’m going to investigate this.”

So we begin the day with a pre-brief driving to work. “I’m going to be a better listener today, I commit to that. It may even involve putting a little note on the calendar before a meeting, before I go into a meeting I’m going to have a 60-second huddle with myself.  I’m going to try to listen better in this meeting.”

And then after the meeting have a debrief with onesself, because we need feedback to improve.  So the meeting lasts an hour, we come out of the meeting, and if we do not then think about that meeting, anything we may have learned or may learn from that meeting is gone forever, it’s just lost.

So part of the exercise then is giving ourselves feedback: “How well did I listen in that meeting? Where was my mind? I may have had a hundred thoughts that were extraneous to the meeting.  If I could recapture the flow of conversation that happened in that meeting, could I do it? Was I really paying attention?” And then as we expand our awareness, we can think, “Alright, what can I notice about what I said in response to other people?  How did I come across? What were the facial expressions of people around the table?” This type of exercise is about awareness and intentionality and feedback.

Q:  I hear you are breaking it down into distinct behaviors that you can think about and reflect on if those behaviors happen or not.

A:  Yes, so the beginning word is intentionality: “I intend, and I am really going to try to be a better listener this morning.” And then mid-day, renew or refresh that intention: “Listening is going to be my aim this afternoon.”

Q:  Have you found that people are too easy on themselves or too hard on themselves?  Because when you were talking about how you might debrief with yourself, I can imagine some people saying, “I was an incredible listener, I did everything right, it went so great.”  And then another group of people saying, “Oh it was terrible, I was a horrible listener all my efforts are of my efforts are you know for naught, and I’m never going to get better at this.”

How do you help people as a coach to have the accurate self-critique but also not be so tough on themselves?

Q: In my experience, most lawyers are very self-critical. That inner critic comes out and interprets and seizes interpretations of themselves usually in a negative way.  So there is a writer, Marilee Adams, who has done some great work in identifying that mode that we get in most of the time of being a judger: judging other people, judging ourselves, usually critically, often quite harshly.

That mode contrasts to being in a learner mode where we are curious instead of beating ourselves up. In learner mode, we want to be a learner and we’re curious in a non-judgmental way about what just happened: “What was I doing? What was I thinking? Where was my attention?” Then, for the next hour now, having been aware of what was happening to me in the last hour, I’m going to see if I can direct my attention in a more positive productive way.

Then it is uplifting, then it’s positive, then it doesn’t hurt, it actually feels good because learning feels good. Rarely do we put ourselves in learning mode. But we can, and it helps a lot.

Q: Before we close the Q&A, are there any other important topics we might talk about regarding executive coaching?

A: So the one message that I have with all of my clients, the one huge need that I see is the leadership arena, is taking time to pay attention to leadership. People that you and I work with, they work all the time—maybe 200  or even 300 hours a month or more. That’s a lot of time spent on their careers.

Most of the people that you and I work with are leaders or have leader or management responsibilities. But they usually spend sometimes close to zero minutes thinking about their leadership. They don’t spend any time thinking about how to be more effective, more influential and happier and more satisfied with what they do.

So to give priority, to pay a little bit of attention to leadership—just one percent or two percent of their time—can have a huge return on investment. We can all be better leaders and be happier in the process. That’s my message.

Q:  Sounds like a win-win.

A: It really is. Everybody wins.

 

 

 

Clinical legal educationCollaborationFact investigationLaw practiceLaw school

The hothouse of law school

The great law professor Larry Ribstein used to say that legal education has grown within a hothouse. Flora and fauna grow in different ways in a hothouse than in a natural environment.

-William D. Henderson, quoted in Katrina Lee, The Legal Career: Knowing the Business, Thriving in Practice (2017)

For sixteen years I’ve been teaching in the “hothouse” of legal education. I’m certainly aware of differences between how law and legal skills are taught in the hothouse and how they are practiced in the natural environment.

Some of these differences are unavoidable and in fact beneficial. Education is preparation, and preparation can thoughtfully sequence legal topics and legal skills in a way that law practice does not and cannot.

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But some differences between the hothouse and natural environment of practice are not necessary or helpful. It’s an essential part of the law professor’s task to be aware of this difference and make constant calculations about where to situate each assignment or discussion. A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

One key to making those calculations is knowing what happens in typical natural environment of law practice. Ann Sinsheimer and David J. Herring did a fascinating study of what lawyers really do at work. Of particular interest to the legal-writing professors, they found that lawyers they spend a ton of time meticulously crafting emails.[i]

Sinsheimer and Herring also found that lawyers spend a lot of time reading—no surprise there. But what they are reading is not nearly as case-driven as expected:

The scope of what these attorneys read was surprising to both the associates and the law student observers, particularly given the emphasis on reading judicial opinions in the traditional law school curriculum. In fact, our law student observers were surprised by the relatively few judicial opinions these attorneys read. Consider, for example, the following excerpt from the 2L observer who followed L, a third year litigation associate at a large law firm:

The types of documents L read varied based on what type of case she was working on and how big her role was within the case. What surprised me most about this was how little time she actually spent reading judicial decisions. While I was there, I witnessed her reading mostly treatises, statutes, case summaries, emails, discovery documents, and secondary sources. She did read some judicial opinions while I was there, particularly when she was researching a legal issue, but not as frequently as one would expect based on the strong focus on what seems like only judicial opinions in law school. A lot of L’s time was actually spent reading documents that most law students never see, such as discovery documents, business documents, contracts, and bids.

Thus, this study points out that legal education may in fact have a “hothouse” problem when it comes to reading. Classes on transactional reading and writing, administrative and procedural skills, and business skills would help bring their experience closer to what they will see in the natural environment.

I think there’s even more of a gap in how listening is approached in legal education versus how it’s practiced in the natural environment.

Yes, there is some excellent training in listening and communication, and I’ll talk about that in a moment. But what do most law students do, most of the time? This is what worries me because this is what I think the answer is:

Go to class. Sit somewhere between 5 and 100 feet away from the professor. Open a laptop. (Maybe) open a chat channel. Take notes. (Maybe) chat with classmates or others. Make eye contact—or not. Take good notes—or not. (Maybe) record the class and listen to it later. (Maybe) ask a question or be asked a question, every couple of weeks at best. Start to gather up books and electronic equipment in the last few minutes of the class as the professor wraps it up. Close the laptop. Leave. Get tested indirectly on listening skills during the midterm and final exam weeks or months later. Never find out if a weakness on that exam was the result of a listening, reading, or thinking deficiency.

This is bad training for listening in law practice.

A student may spend an entire semester never making eye contact, consistently multi-tasking, and never confirming whether the notes they took are accurate or complete. Not to mention the fact that these hundreds of hours spent staring at a screen conditions any human being to . . . want to stare at a screen.

This is a hothouse, big time.

There are some pockets of explicit preparation on listening—some places where legal education is closer to the natural environment of listening in law practice. Simulations and clinics present excellent opportunities for real-world listening skills. I’ve watched a video with Lyn Su of New York Law School where she brilliantly coached a law student on his interaction with a simulated client. That’s just one example of the helpful opportunities that are available for those who take advantage of them.

The Sinsheimer/Herring study did not explicitly address listening skills as such in the workplace. It did, however, suggest that preparation on listening to clients and judges, while better than nothing certainly, is not quite what many new attorneys really need:

Communication skills were fundamental to these attorneys, but the sort of skills they drew upon are not a key part of the traditional law school curriculum. Communicative acts in law school often involve preparation for courtroom appearances or client interviews. In contrast, the sort of communication engaged in by the attorneys we observed was usually intra- and interoffice or business communication. Despite what their law school experience might have suggested, these attorneys made few court appearances and had limited client communication.

So how to get out of the “hothouse” and into more of a natural environment for actively teaching these skills? Having more clinics and simulations is one solution, and the ABA’s new graduation requirement of six experiential-learning credits will definitely have an impact. But students need a lot more than six hours of credit to graduate and could still spend hundreds of hours staring at their screens and typing notes.

One highly promising solution is the idea of team-based learning, where students have to talk and listen to one another in small groups. Working in a small group that is accountable to one another means that each team member’s listening skills (and all people skills) will matter much, much more. Professor Lindsay Gustafson of University of Arkansas-Little Rock has spoken about using team-based learning not for a skills class or clinic but for . . . 1L property class.

I’ll say more in future posts about Gustafson’s work and team-based learning as an escape from the “hothouse.” Professor Anne Mullins of North Dakota has done good work on team-based learning as well.

And I invite comments about what are the right communication skills for the natural environment of law practice, as well as how to teach and promote those skills through legal education.

…….

[i] Legal-writing professors talk all the time about whether memos and appellate briefs are too much like “hothouse” assignments. The rise of the email assignment and shorter assignments in general are a sign that legal-writing classes are evolving to better represent the actual nature of practice. (It can never actually “be” the true experience but only a simulacrum for educational purposes. And that’s as it should be, since it is by definition education and preparation for that experience.)

In speaking, moot court is an excellent advocacy project that is also fairly criticized for being, at times, artificial. An example of a critique is Steven Berenson’s article in the New Mexico Law Journal, Preparing Clinical Law Students for Advocacy in Poor People’s Courts. He argues that students need to be ready to speak in a much less structured and more chaotic environment.