Holiday listening

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StoryCorps’ Great Thanksgiving Listen of 2016 wraps up this weekend. StoryCorps is an oral history project with a mission to “preserve and share humanity’s stories in order to build connections with people and create a more just and compassionate world.”

The Great Thanksgiving Listen of 2016  follows up on the first Great Thanksgiving Listen of 2015, facilitated by StoryCorps’ release its app in 2015. The app has lots of stories to listen to, and it also walks users through the process of preparing and recording their own interviews:

Choose someone to interview. Pick great questions. Find a quiet place to record. Listen closely.

StoryCorps seeks to make interviewing a standard part of the high school curriculum, based on the success of the 2015 Thanksgiving Listen:

A 14-year-old in Georgia heard what it was like for her grandmother to go to bed hungry; students in Colorado heard one man’s experience of enlisting during the Vietnam War; and a teen in Louisiana found out that her grandparents got engaged at a drive-in movie.

There’s no reason this endeavor should be limited to high school students. Really, it’s for anyone who wants to make a deeper human connection by listening to someone and helping them memorialize their story. And the interview need not be a Forrest Gump-like overview of historical moments. The ABA Mentorship Project has teamed with StoryCorps to record narratives on mentorship in the legal profession here. The University of South Carolina School of Law’s Pro Bono Program is partnering with StoryCorps to record lawyers’ and students’ stories related to serving the Hispanic community as well as advocating for LGBT clients. 

Outside the boundaries of required classwork, law students may not be able to record someone’s story in the stressful period between Thanksgiving and the end of final exams. But if finals end in mid-December, the holiday break is an ideal time to rest and recharge by listening to someone else. It builds interviewing skills and may help students clear their heads. More importantly, it creates a human connection and participates in StoryCorps’ mission of creating a more just and compassionate world.

Love your lawyer (part 2): Emotional labor of lawyers

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Love Your Lawyer Day prompted the question: what makes clients love their lawyers? Client satisfaction is one way to gauge clients’ love. As addressed in an earlier post, client satisfaction depends on the lawyer’s competence and expertise. But client satisfaction is also intertwined with how the client experiences the process.

The client’s desire for a satisfying experience raises an aspect of lawyering that deserves more attention: emotional labor. Emotional labor is a common practice across service professions and “requires one to induce or suppress feeling in order to sustain the outward countenance that produces the proper state of mind in others.” Emotional labor generally occurs in personal interactions such as face-to-face or voice-to-voice moments. The person doing the labor displays emotion to influence the client or customer, and that display of emotion follows the rules of the profession. (The source here is Sofia Yakren’s article Lawyer as Emotional Laborer in the University of Michigan Journal of Law Reform, which is this post’s major source along with Joy Kadowaki’s Maintaining Professionalism: Emotional Labor Among Lawyers as Client Advisors in the International Journal of the Legal Profession.)

The concept of emotional labor was originally formulated and studied by sociologist Arlie Hochschild, who focused on flight attendants in the early 1980s. Emotional labor has been in the news with the rise of Uber and other on-demand service where customer ratings mean a lot. As reported in the Harvard Business Review Blog, “on-demand workers end up performing outsize amounts of what sociologists call ‘emotional labor,’ or expressive work to make the customer experience a positive one so that users come back to the platform.”

Lawyers may not use platforms like Uber apps (not much yet anyway), but Yelp ratings are important and sometimes problematic for many. And whether a lawyer gets clients from Yelp or a casual conversation at the Yale Club, lawyers do perform emotional labor. A common theme of all emotional-labor literature is the tools workers use for performing it:

  • deep acting
  • surface acting
  • detachment

Deep acting means trying to make yourself experience the emotions you are displaying. Surface acting means using techniques to fake emotions. (This can be done in good faith to help the client, or in bad faith as a sort of cover-up.) And, as Joy Kadowski found in surveying consumer-oriented lawyers, detachment means dealing with repugnant clients by “taking emotion entirely out of the interaction with the client, reducing the relationship to one that is ‘strictly business.’”

The emotional-labor literature does not paint a particularly optimistic picture. When professionals genuinely change their feelings or align them with their actions in deep acting, the costs of emotional labor go down. But surface acting and detachment are associated with emotional dissonance, which leads to a host of problems from addiction to depression to general alienation.

Another question is, who is emotional labor for, anyway? If the focus of emotional labor is on creating a comfortable emotional state in the client, then perhaps it’s for the benefit of the client. Emotional labor to keep the client as comfortable with the legal process as possible under the circumstances could indeed help clients love their lawyers.

But emotional labor also follows predictable rules defined by the profession, and part of what professionalism does is to “convince, cajole and persuade employees, practitioners, and other workers to perform and behave in ways which the organization or the institution deem to be appropriate, effective, and efficient.” (This is Kadowaki quoting sociologist Julia Evetts.) The sociologists coined the term “feeling rules.” And feeling rules are not just for the benefit of the client in the relationship; as Kadowaki points out, “In some cases [emotional labor] is done for the benefit of the attorney-client relationship, but at other times emotional labor is used to protect the emotional state of the attorney, and thus his or her performance of professionalism.”

What can be done to minimize the consequences of dissonance for lawyers while preserving what clients need? Dismissive attitudes might say the profession should self-select: if practicing law is so dissonant and painful, then don’t do it. But that’s not a very good answer, as Yakren points out: “Do we want to eliminate healthy self-doubt as a check on professional conduct?” No. Moreover, “constructing a profession comprised of a particular type of thinker could stifle creative solutions to complex problems.” (And thus it could make clients individually and collectively not love their lawyers even more than they already don’t love them.)

Solutions Yakren poses include expl0ring and teaching lawyers more about deep acting (which helps clients just as much if not more than surface acting and detachment, and emotionally costs less for the lawyer doing it); encouraging more autonomy for lawyers to exercise their consciences; and critiquing formalistic notions of professionalism and ethics to recognize the importance of context. Similarly Kadowaki points out that professionalism is far more complex and interconnected than any formalistic system can account for: “While the lawyers [interviewed in her study] defined professionalism as requiring the suppression of emotion, their description of their actual practice detailed significant emotional labor efforts and a much more nuanced negotiation of emotional expression.”

Sources:

Joy Kadowaki, Maintaining Professionalism: Emotional Labor Among Lawyers as Client Advisors in the International Journal of the Legal Profession (2015), http://www.tandfonline.com/doi/abs/10.1080/09695958.2015.1071257

Sofia Yakren, Lawyer as Emotional Laborer, University of Michigan Journal of Law Reform (2008), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2602520

Dan Defoe, Emotional Intelligence and Selecting Personnel Lawyers for High Emotional Labor Jobs, Psycholawlogy, July 15, 2016, http://www.psycholawlogy.com/2016/07/15/emotional-intelligence-and-selecting-personnel-lawyers-for-high-emotional-labor-jobs/

 

Loving your lawyer (part 1)

Jennifer Romig1 Comment

Last week once again America—or at least American lawyers—celebrated “Love Your Lawyer Day.” See also #loveyourlawyerday on Twitter. Beyond the marketing hype, there’s a good question:

What makes people love their lawyers?

The first answer is competence. A 2002 study of how the public perceives lawyers found the majority of consumer clients to be satisfied with their lawyers:

Consumers tell stories of lawyers who apply significant expertise and knowledge to their cases, identify practical solutions, and work hard on behalf of their clients.

The survey also delved into various aspect of lawyers’ performance with clients. 72 percent of clients were very satisfied with their lawyer’s knowledge of the law. The study did go into some factors beyond hard-skill competence. For example, 68 percent were very satisfied with how the lawyer handled the initial conversation.

This study did not ask participants to rank which criteria were most important, or most strongly correlated with satisfaction. It did not ask them whether they found it more important that the lawyer knew the law, as compared to handling the initial conversation effectively.

Analyzing a study of big-firm clients in the U.S. and similar studies in Australia, Professor Clark Cunningham’s paper “What Do Clients Want” delved deeper into the causes of client satisfaction and dissatisfaction. In these studies, the comparative importance of competence appears to be more complicated (emphasis added here):

Many lawyers equate client satisfaction with the outcome achieved; however, studies over the past three decades in three different countries has produced impressive evidence that clients evaluate their lawyers’ competence more in terms of the process experienced by them in the representation than the outcome.

It seems clients see competence as necessary but not sufficient for client satisfaction. Competence is the baseline, and something else is what makes the difference in client satisfaction or dissatisfaction. What is that something else?

Although there was widespread client satisfaction with the specialists’ legal knowledge and skills [in the Australian study of clients], the evaluators also found “consistent evidence of client dissatisfaction with the provision of services, and the quality of the service-delivery process.” According to this study (emphasis added):

Practitioners are concentrating on developing their knowledge and skills to deliver better outcomes; but their clients, expecting both technical competence and results, are being disappointed by the process of getting there. Clients complained about the quality of their lawyers’ services in terms of inaccessibility, lack of communication, lack of empathy and understanding, and lack of respect . . . .

The original idea for this post was to write about the “emotional labor” lawyers perform for their clients and others. Emotional labor means, basically, showing up and being constructive even when it’s difficult: “the effort it takes to keep your professional game face on when what you’re doing is not concordant with how you feel.”  Does a lawyer’s performance of emotional labor make the client “love” the lawyer more?

That question led to the more basic question of what motivates client satisfaction, which led to this overview of the studies above. (There must be more information; please direct my attention to additional good data on client satisfaction.) And the overview here suggests it will be worthwhile to explore emotional labor in more depth in a future post. Emotional labor does seem connected to accessibility, open communication, empathy, and respect.

Feedback would be welcome on clients “loving” their lawyers, client satisfaction generally, and the idea of lawyers performing emotional labor for clients, colleagues, and others. Please share thoughts in the comments or on social media.

A Winning Approach to Negotiations: Self-Awareness, Flexibility, and Practice

Jennifer Romig1 Comment

lee-headshot-2-1Guest post by Katrina June Lee, Associate Clinical Professor, The Ohio State University Moritz College of Law

On September 21, the Moritz College of Law hosted the incomparable Marya Cody Kolman as its 2016 Lawrence Lecturer, named in honor of lawyer and law school educator James K. L. Lawrence (Moritz ‘65).

A Yale Law grad, Kolman is a long-time adjunct professor of negotiations and coach for The Ohio State University’s ABA mediation advocacy team. For more than 30 years, Kolman has helped train OSU law students to be, in her words, “high-quality ethical representatives.” Kolman’s full-time day job, since 1999, is Director of Mediation Services at Franklin County Domestic Relations Court in Columbus, Ohio.

In giving this year’s Lawrence Lecture, Kolman drew from her deep negotiations experience. The Lecture took place in the law school’s large auditorium and was attended by students, professors, and practitioners.

Kolman’s main theme for aspiring effective negotiators could be summed up as follows: reflect on and identify your own negotiating tendencies, build into your repertoire styles that do not come naturally to you, and practice so that you can adapt to any type of negotiating situation.

She started the lecture with a very telling story that revealed her main theme.  Over the years, as a coach for OSU’s ABA mediation advocacy student team, Kolman noticed that OSU’s team regularly beat teams that had practiced for months and months (sometimes years). Yes, OSU law students were (in Kolman’s words) “simply amazing” and benefited from education in an outstanding law school dispute resolution program. Still, Kolman wondered if there was something about their competition preparation that made OSU law students especially effective.

A winning approach

After some reflection and investigation, Kolman discovered that the OSU teams benefited from not being scripted and not being coached to follow a fixed protocol. Kolman learned that some law schools tried to script the roles for their students or require that they negotiate in a certain way. This approach to preparation differed significantly from Kolman’s approach.

Kolman described the OSU team approach, which emphasized self-awareness and flexibility. Coaches first watched the students and observed their negotiation styles. The coaches noted the students’ strengths and challenges as negotiators. They then helped the students build on their own style and be more effective negotiators using existing strengths. This approach proved to be much more effective than giving students a script or a fixed protocol on how to negotiate.

OSU team coaches had identified a winning approach. The approach focused on developing self-awareness about students’ “natural” negotiation styles and tendencies, and helping students build on their strengths and develop the ability to use other styles when situations called for them.

Raw talent is not enough. Be prepared.

Kolman emphasized that “raw talent” is not enough to be a successful negotiator. Lawyers need to learn about different styles and skills and practice them. Only through that exploration and practice can a lawyer learn what works best for him or her. Kolman coached the audience: Develop strengths and expand on them. Avoid “forcing yourself into a style that does not work for you.”

Even though everyone has negotiated before law school, whether at the grocery store or with family members at home, Kolman cautioned, lawyers should not enter negotiations without training, forethought, and preparation. As I tell my negotiations students, preparation is key.

When Kolman practiced law as a domestic relations attorney, she negotiated with opposing counsel on a daily basis, with 95 percent of cases settling before trial. Most opposing counsel were well-prepared, but some were not. Those who were not would come into the negotiation and start flipping through their files trying to figure out what was going on in the case. Not surprisingly, in those instances, Kolman was usually able to negotiate a very favorable settlement for her client.

Steps to effective negotiating

Kolman offered these steps for any law student or lawyer to become a better negotiator:

Analyze your personal negotiation style and preferences.

One place to start is the Thomas-Kilmann Conflict Mode instrument. For a price, a person can assess which conflict-handling modes he or she is overusing or underusing. The five conflict-handling modes are competing, accommodating, avoiding, compromising, and collaborating. Kolman noted that, without paying for the T-K Conflict Mode Instrument, you can still assess your conflict-mode tendencies through honest hard reflection.

“Think about what’s you” and work on styles that are “not you.”

Once a person has identified personal preferences and tendencies, Kolman urged audience members to “think about what’s you,” maximize your own tendencies, and work on other styles that may not come naturally. Bringing together the strengths of “natural tendencies” and an ability to use other styles as needed will help a lawyer become a well-rounded negotiator. For example, the lawyer who naturally tends to use an accommodating style will find it helpful to learn how to use a competing style so he or she can use it when needed.

Learn about different negotiation styles and practice.

Training and practice help build effective negotiation skills. Kolman commented that “the beauty of a negotiation class” is that “you can try things out.”

Always be willing to learn the interests of your client and the other party.

Kolman emphasized the importance of learning the interests of a client and the other side. This can help with problem-solving and collaborating to find a solution that all parties are happy with. In our negotiations courses at OSU Moritz College of Law, students learn skills that help with exploring interests, including active listening, asking helpful questions, and achieving an optimal balance of empathy and assertiveness in a negotiation.

Kolman encouraged all aspiring negotiators to work on being more self-aware about personal tendencies, understand that raw talent is usually not enough to be an effective negotiator, and to practice styles that do not come naturally.

After reading this post, consider what your personal style is in handling conflict, and try a different one.

 

Sources cited in the 2016 Lawrence Lecture (arranged alphabetically here):

Roger Fisher, William Ury & Bruce Patton, Getting to Yes, 2nd Ed. (Penguin Books 1991).

Gary Goodpaster, A Primer on Competitive Bargaining, 1996 J. Disp. Resol. 325.

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA Law Review 754 (1984).

Robert H. Mnookin, et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Press 2000).

Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143 (2002).

Richard Shell, Bargaining Styles and Negotiation, 17 Neg. J. 155 (2001).

Listen Like a Lawyer is grateful for this post by Katrina June Lee, Associate Clinical Professor and a member of the Dispute Resolution faculty at The Ohio State University Moritz College of Law, where she teaches Legal Negotiations and Settlements. Moritz’s DR program is No. 1 in the 2017 U.S. News & World Reports ranking of law school DR programs. Professor Lee notes her thanks to Marya Kolman for her insightful Lecture and for sharing her notes and slides for use as background for this post, and to Professor Ellen Deason for her review and comments on this post.

 

Best Practices for Law Schools and Student Organizations when Inviting Guest Speakers

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This post is formatted as a draft policy on best practices for law schools and law-student organizations when they invite guests to speak to or interact with their law school community. This policy errs on the side of formality and specificity, attempting to spell out specific steps for inviting guests and planning events. Feedback is welcome, particularly from members of the bench and bar who may want to share their thoughts on having a good (or bad) experience guest-speaking at a law school.

Purpose

The purpose of these best practices is to articulate norms of civility and courtesy for events sponsored by law schools and law-school student organizations in which guests—such as members of the bench and bar—are invited.

The norms are based on the idea of thoughtful reflection before planning an event, open communication while planning the event, respectful attention and engagement during the event, and appropriate expressions of gratitude after the event.

Observing these norms make the experience of hosting a guest more likely to be a positive experience for the guest. Observing these norms may also make the experience more meaningful for event attendees. Observing these norms may, in the broadest sense, encourage legal professionals to accept future offers from other organizations to future events. Thereby, these norms serve to encourage positive interactions between the bench and bar and students and faculty at law schools.

Audience

These best practices are offered for consideration by any law school or law-student organization that invites guests to campus to speak and interact with students and faculty.

Before the Event

The organization will confer with law school administrators and event planners to ensure that inviting the desired guest is appropriate in light of other law-school communications with that guest, the overall relationship with that guest, and the law school’s other commitments and events during the proposed time for the event.

The organization will make a reasonable estimate of how many attendees it can expect at the event. The organization will communicate with potential guests when making invitations and share the estimated attendance. Guests should have this information when deciding whether to accept the invitation.

For example, a legal professional may be willing to donate his or her time to speak to 30 law students, but not 3.

The organization will take reasonable steps to schedule the event at a time when attendance will meet the initial estimate. This includes checking with calendars and event planners for scheduling conflicts. After reasonable steps have been taken, the organization will assess whether to pursue the event should a conflict arise.

If the organization later learns of a scheduling conflict that would materially change the conditions that guest experiences in the event, the organization will contact guest and describe the new conditions, giving the guest the opportunity to revisit and change the commitment to attend the event.

The organization will set a schedule for the event that provides an appropriate time and setting for the guest to speak or lead a discussion. This includes confirming and communicating the amount of time available for the guest to speak. It also includes organizing any lunch, cocktails, or other refreshments so as not to interfere with the time and setting of the guest’s presentation.

One or more designated representatives of the organization will provide coordinated communication to any guests the organization may invite for the event.

Communication will be coordinated, meaning everyone within the organization with some responsibility for the event will stay in communication with others within that organization. Thus the organization will provide consistent, timely information to guests. The organization will facilitate directions and parking and any other logistical details, and will share this with the guest as soon as reasonably possible.

Ideally, the organization will share logistical details with the guest before the guest feels the need to contact the organization and ask for those details.

The organization will delegate to one or more individuals the task of preparing an introduction for the guest. This includes verifying in advance and then using the proper pronunciation of the guest’s name. It also includes the task of asking for a resume or C.V. or other biographical details, or collecting them from research.

Students who may be unsure of what an appropriate introduction is or how to deliver it should ask experienced professionals at their law school.

Digital Etiquette During Events

As a general practice, the organization will notify its members and others invited to the event, in advance of the event, about its policy for encouraging, permitting, discouraging, or prohibiting digital distractions including phones, tablets, and laptops.

Having no policy and leaving digital etiquette up to attendees is a possible option, but it surrenders the organization’s role in creating the appropriate environment at the event.

Prior to the event at an appropriate location near the entrance of the space where the event is taking place, members of the organization will post prominent signs stating the event’s policy on phones, laptops, and other digital devices.

If the organization believes the guest may wish to permit or encourage event-related digital activity during the event, such as tweeting and other social-media sharing, the organization should check with the guest before the event and adjust event policies accordingly.

For example, some guests may strongly desire that their presentation be shared on social media, and others may wish to discourage such sharing.

At the beginning of the event, a designated representative of the organization will announce the event’s policy for laptops, tablets, phones and other potential digital distractions.

This can be done in a friendly manner such as before theater productions.

Members of the organization will set the standard of respectfully focusing on the guest during the session.

If the event draws both members and non-members, attentive focus by members can create a respectful and positive environment for the guest.

If appropriate, attendees who are seen committing distracting behavior inconsistent with the norms announce for the event may be discretely asked by a member of the organization to stop.

After the Event

A representative of the organization will personally thank the guest and attend to any needs the guest may have in connection with the event, such as parking vouchers.

A representative will offer to accompany the guest to their next destination in the law school (or the building exit).

The organization’s leadership will thank the guest in writing after the event. Whether to email, type, or hand-write the note is a decision to be discussed among the organization and with others at the law school as needed.

The organization will contact the law school administration if appropriate to confer whether additional thank-you notes should be sent from administrators.

The organization will seek to build institutional knowledge about the relationship with this guest. Event organizers will create notes to disseminate to future leaders of the organization. This process allows relevant information to be handed down to future leaders within the organization responsible for planning new events.

“Vocal fry” discussion October 18

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You are invited to join the first Facebook chat sponsored by the peer-edited journal Legal Communication & Rhetoric: JALWD. This chat will feature live chat-based discussion of Professor Michael Higdon’s forthcoming article, Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion. Professor Susie Salmon of Arizona Law will moderate the discussion featuring Professor Higdon. His forthcoming article is currently posted as a preview on Law360 here: https://www.law360.com/…/841771/oral-advocacy-and-vocal-fry-

The discussion will take place on Tuesday, October 18, at 3pm Eastern time. To join the discussion, please log into Facebook and request to join the LC&R Discussion Group here: http://bit.ly/LCRJALWD. You may join the Group at any time in advance of the discussion.

The best way to participate is to start by reading Professor Higdon’s article. (An early draft was covered in a Listen Like a Lawyer post here.)

Then submit your questions and be prepared to discuss the article with Professors Higdon and Salmon and others during the discussion. Professor Salmon will guide the questions and Professor Higdon will be on hand to share his thoughts and interact with other participants. You can submit your questions for the discussion to Professor Salmon and Abigail Patthoff at salmon@email.arizona.edu and patthoff@chapman.edu before the end of the day on October 14, 2016.

The Group invites participation by lawyers, law professors, professors from communications and other fields, legal professionals, law students, and anyone with an interest in law and legal communication. It is a forum for the free exchange of ideas with civility and mutual respect.

We look forward to kicking off these discussions October 18.

Sincerely,

Abigail Patthoff
patthoff@chapman.edu

and

Jennifer Romig
jromig@emory.edu

LC&R Social Media Editors

Inclusive Listening: Pushing Through Bias and Assumptions

Jennifer Romig4 Comments

kellyGuest post by Katherine Silver Kelly, Associate Clinical Professor of Law and Director of Academic Support at the Moritz College of Law, Ohio State University

Lawyers like to think we are excellent listeners. We do it all the time; it’s at the core of our profession. As with any skill, good listening requires ongoing practice and development. But before you say you’re a good listener, determining this is not up to you, it’s up to the recipient of your listening.

I’ll illustrate this with an example: At a professional event not too long ago I was having a conversation with a group of attorneys. The talk turned to college sports and I mentioned I’m from Kentucky. One of the attorneys said to me,

“Huh, you don’t sound like you’re from Kentucky. Where in Kentucky are you from?”

I answered the question and politely moved on with the conversation. What I wanted to say was:

“Really?! How do you know what someone from Kentucky sounds like? How is that relevant to what I’m saying? ”

Yes, it was a casual conversation and maybe the attorney would not have said it to me had we been in a courtroom or meeting but she would have thought it. And it definitely affected how she listened to me going forward. It also distracted me as I couldn’t help but wonder what assumptions she was making about me because I’m from Kentucky and whether her perception of my competency had diminished. All it all, it diminished the authenticity of our communication.

 

2285036990_03676ef8e7_o
Courtesy Flickr/Sciencesque/CC BY-SA-NC 2.0

 

 All of my life, I have been judged based on where I am from. You cannot see my ethnicity on my skin, but you can hear it. I carry it on my tongue, and I can no more get rid of it than anyone can change their skin color. 

The only way a person can open their mind and their heart is by opening their eyes and seeing that these differences make us stronger and that we are not as different as we might imagine. Only by serving others do we serve ourselves. Only by realizing the beauty of those different from ourselves are we able to realize our own beauty.

-Author Silas House, speech at Berea College (2013)

Truth be told, I’m not “from Kentucky” because I was born in Philadelphia, Pennsylvania. My family moved to rural, southeastern Kentucky when I was 14 and it’s my home.

I never thought I had a Kentucky (or other) accent until a few years ago when I moved to Ohio. People would cut me off mid-sentence to remark on it and how cute it was that I said, “y’all.”

Regardless of whether people are actually biased listeners, pointing out that someone has an accent basically says that the speaker is different and this difference matters. It certainly made me self-conscious of how I spoke and what I said. People have a natural affinity for others like themselves, and pointing out a difference reflects an implicit bias.

Like it or not, we all have subconscious stereotypes that affect our unconscious beliefs and perceptions. Denying this only perpetuates the bias. Instead, by acknowledging that we make assumptions, we can challenge and start to change them. This is especially important for lawyers as effective communication is a basic tenet of our profession. While the type of communication may vary, one overarching fundamental legal skill is the ability to effectively assess and respond to the perspective of the recipient of the communication. This requires inclusive listening.

Inclusive listening makes other people feel valued and understood. When listening to others most of us tend to assume we understand and we reach conclusions based on our point of view and our implicit biases. Inclusive listening doesn’t make assumptions. It requires one to actively engage in critical thinking: notice and question our assumptions, and recognize that assumptions are not truths.

This is not easy to do. I know because writing this post made me quite aware of my habits as a listener. This past week I’ve made it a point to recognize that I have unconscious biases and started to challenge my assumptions (ex: don’t negatively categorize everyone under the age of 30 as a “millennial.”). I’ve made sure my non-verbal cues show respect for the speaker and I’ve worked on better engaging as a listener by affirming the speaker’s contributions and asking clarifying questions.

Consciously engaging in inclusive listening has helped me realize that I’ve expected (maybe even demanded) it from others but wasn’t doing such a great job myself. For so long I’ve been on the other side and this helped me switch my point of view. If I want to be listened to, I’ve got to be an inclusive listener. On a broader level, for lawyers to be truly effective communicators, they must fully understand all aspects of a situation. The only way to gain this understanding is through inclusive and engaged listening.

 

Categories of listening

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Katrina Lee from Ohio State tweeted earlier this week:

The article referred to in her tweet is by  Jim Lovelace, Director of Talent Development at Pillsbury Winthrop Shaw Pittman LLP, and was published in the ABA Law Practice Today.

As Katrina said, it is a quick read. And it’s a pretty powerful read, too. The essential premise is that to be effective, a listener must move beyond “self-focused listening.” What does that mean?

In my 25 years of experience as a practicing lawyer and legal career development professional, I have observed that lawyers spend the vast majority of their work time—when they are not talking, that is—as self-focused listeners. When they hear others’ stories, their minds are occupied with: What are the flaws and where are the potential liabilities? Where is the “good stuff” on which I can build a case? They dig for facts, often asking for more information to construct their narratives and theories. This is not surprising. This is what lawyers have been taught, from law school onward, to do.

But there’s more to listening than this self-focused approach. Lovelace introduces empathic listening and comprehensive listening, two other categories of listening that may not be right for a contentious deposition but are very, very right for interpersonal situations at work. Lovelace uses a hypothetical in which a trusted senior associate blindsides the senior partner by announcing he’s leaving the firm. Different listening methods can affect not just the tone but the outcome of such conversations.

Lawyers love categories, and somebody this blog will have a pull-down menu listing the many categories of listening that communications experts have identified. When it comes to (1) self-focused listening, (2) empathetic listening, and (3) comprehensive listening, Lovelace’s article is an excellent introductory resource. It doesn’t take long to read, and it’s really good. Thanks for the tweet recommending the article, Katrina!

Cognitive bias and listening

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Cognitive biases—such as believing information that confirms what you already believe—present a major challenge to the idea of the “rational actor.” Cognitive biases are being being studied in practically every field, including law. Bringing the research to a popular audience, Daniel Kahneman’s book Thinking, Fast and Slow, is a challenging but accessible read. And I was happy to learn that Kahneman’s Nobel-Prize winning partnership with Amos Tversky will be the subject of Michael Lewis’s next book.

Also providing an accessible take on cognitive bias, here’s a “Cognitive bias cheat sheet” by Buster Benson. In addition to the concise and helpful text, the visual “Codex” of cognitive biases at the bottom is a brilliant piece of visual storytelling. (This “cheat sheet” was shared by Adam Grant, Wharton professor and author of Originals plus a forthcoming book with Sheryl Sandburg. His Granted newsletter would be useful to anyone who puts thought into their communications.)

Listen Like a Lawyer has covered cognitive bias before, here and here and here. Reading Benson’s post reminded me of why it’s so important to continue revisiting and emphasizing this topic.

How can cognitive bias affect (or should it be infect) the listening process? I’ll quote a few of Benson’s summaries from the cheat sheet.

For example:

“Bizarre/funny/visually-striking/anthropomorphic things stick out more than non-bizarre/unfunny things.”

Have you ever talked to someone with food stuck between their teeth? It’s so bizarre and distracting you may not have been able to concentrate on what they were saying. That’s the example of a listening problem that came to my mind, anyway.

Also:

“We notice flaws in others more easily than flaws in ourselves.”

When listening to someone face to face, the flaw-finding intuition may kick on, whether the person has food between her teeth or not. This is actually even more true in writing. An interesting study found that people consistently give higher ratings to spoken material than if the exact same words are written down:

“[W]ritten passages lack critical paralinguistic cues that provide critical information about a speaker’s intelligence and thoughtfulness. Your voice is a tool that has been honed over the course of human evolution to communicate what’s on your mind to others. Without even thinking about it, you naturally flood your listener with cues to your thinking through subtle modulations in tone, pace, volume, and pitch. The listener, attuned to those modulations, naturally decodes these cues. That’s why if you claim to be passionate about your prospective job, for example, hearing your passion may be more convincing than reading your passion.”

So perhaps listening creates a bias toward the human connection in face-to-face communication. But what if some of this human connection is distorted in our memories?

“We edit and reinforce some memories after the fact.”

An important part of listening is remembering what has been said in order to form an appropriate response. This is a short-term memory function. In the longer term, as Benson writes, details can be “swapped” or even “injected” into a memory. Remembering what you were thinking during a conversation might in some ways overshadow your memory of the conversation itself.

Such distortions can cause other communication problems:

“We think we know what others are thinking.”

Benson writes that we may be “modeling their mind after our own” in how we think about what they are thinking. This presents an impediment to properly gauging another person’s level of understanding.

Another issue:

“We find stories and patterns even in sparse data.”

Legal listeners may make the most out of the data available such as the paralinguistic cues indicating the speaker’s emotions. Or they may turn their mind inward, hearing a few facts and then instantly connect this client’s situation to a past experience or archetypal story like David v. Goliath.

Some of this gap-filling may happen partly because people think faster than others can talk. This creates the well-known “thought-speech differential”. The excess brain capacity to think, compared with the relatively slow rate of speech, creates mental opportunities to spin stories around the “sparse data.”

And could this differential cause problems? Yes, in several ways.

One issue is a simple intolerance for listening, especially when speakers aren’t perceived to be concise. We’ve all felt that frustration as listeners:

Just get to the point!  

And that frustration can lead to simple “self-help solutions” such as checking one’s phone for more pressing info. Benson writes about how many cognitive biases come from the fundamental human need to act fast. Listening is slower than thought, so it may simply stand in conflict with the brain’s drive to take in information quickly and make a decision. Our collective acclimation to faster and faster pace of receiving information has been written about elsewhere in wonderful sources such as Nicholas Carr’s The Shallows and the work of Sherry Turkle. That topic is too broad for this one post. But it’s connected to the preference for texting over seemingly inefficient phone conversations and voicemails.

The drive to make a decision quickly can also lead the mind to rely on cognitive biases for gap-filling information, sometimes in troubling ways:

“We fill in characteristics from stereotypes, generalities, and prior histories whenever there are new specific instances or gaps in information. “

To put it in even more troubling terms, again quoting Benson:

“We imagine things and people we’re familiar with or fond of as better than things and people we aren’t familiar with or fond of.”

Legal professionals should be able to work with people from different backgrounds using an open, unbiased approach. Cultural biases can infect the communication processes with numerous distortions, omissions, and other bad effects. As an example of legal work being done to combat those problems, here’s Professor Susan Bryant’s foundational article on the “habits” that build cultural competence. Professor Andrea Curcio has some excellent work in this area as well such as here and here. There are many, many others. On a positive note, Curcio’s work suggests that simply taking a carefully crafted survey can itself have beneficial effects on survey participants. She cites studies involving medical students in the U.S. and U.K. with similar outcomes.

More generally, with all of these cognitive biases around everywhere—just take a look again at that visual Codex of Cognitive Biases to understand how many there are—can anything be done to mitigate their pervasive effects?  Benson suggests studying a simple four-part outline of the problems causing cognitive biases as well as four corresponding consequences of unmitigated cognitive bias. The idea is that by keeping these ideas fresh in your brain, perhaps the “availability bias” privileging this countervailing information will cross over into other assessments our brains are constantly working on.