Spontaneous speech doesn’t fit together like Legos. Because speech reflects a sometimes messy thought process in real time, spoken transition words and phrases—what the linguists call “discourse markers”—serve a crucial purpose in conversation.

Discourse markers can be as empty as “I mean,” as overused as “clearly,” or as specific as “at the end of the day.” (I had thought “at the end of the day” was just a legal/business buzzword. Apparently it formally qualifies as a discourse marker as well.)

There are different kinds of discourse markers, including those the speaker provides to structure what he or she is saying, and those the listener provides in participating in the conversation. Saying “um-hmm” to keep the conversation going is one example. This post focuses on listening to the speaker’s own discourse markers because they are tempting to disregard.

Lawyers may think that they can listen most efficiently by disregarding most discourse markers and focusing on the “real” content they are hearing. I confess to having tried this in many past conversations. But disregarding discourse markers is actually a really bad idea. They are an important source of information about the speaker’s attitude toward the conversation itself. They can:

• highlight important events in a narrative;
• help listeners follow a speaker’s train of thought;
• help listeners recover from a “repair”; or
• show the relationship between two statements.

This list is quoted from a linguistics article by Fox Tree and Schrock, Oh What a Difference an Oh Makes, found in this PDF. The article reports on language experiments with a fascinating conclusion: listeners better understood speech content when it included a discourse marker as simple and seemingly insignificant as the word “oh.” When listeners heard the same speech content without the “oh” or with just a pause where the “oh” would be, they didn’t understand the content as well.

For listeners, recognizing and showing responsiveness to a speaker’s discourse markers can build trust and move the conversation forward. Misinterpreting or entirely missing a significant marker can set the conversation back and make the speaker think less of the listener.

Many markers focus on the content of the conversation:

• Signaling an important idea, such as “The key point is . . .“
• Highlighting an objection, such as “Here’s the thing . . .”
• Marking an attempt to end the conversation, such as “So the takeaway from all of this is . . .”

Some discourse markers seem more personal than others, and may serve as a sign of submission or authority:

• Using the listener’s name, as in “Casey, . .” or “Your honor, . . .”
• Phrasing the message directly and personally to the listener, such as “What I need you to understand is . . .”

And some discourse markers involve repackaging part of the conversation to relate it to a new piece of content:

• Rephrasing an idea and moving into a new idea as another item in a list, such as “In addition to the time and energy it will take to litigate this issue, there are also hard costs to consider.”
• Rephrasing a concern and subordinating it to a larger concern, such as “And although the timeline is challenging, it’s going to be very difficult to justify waiting any longer.”

Discourse markers are a universal trait of language in both speech and writing. Jill Ramsfield and Christopher Rideout have written about discourse markers unique to legal writing such as “whether” for introducing a traditional Question Presented. In spoken legal discourse, perhaps “your honor” in addressing a court is the most ingrained discourse marker? One of my favorite law school professors, a frequent advocate before the United States Supreme Court, described using “your honor” as a filler when she was brainstorming what to say next. Readers: please chime in with further thoughts on uniquely legal discourse markers.

What really matters for lawyers is to recognize the importance of discourse markers. Maybe a more memorable word for the practical lawyer is “signals”: discourse markers can send a *signal* about what a speaker thinks. They could signal what a client thinks is really important or when a judge is ready to move to a new argument.

Noticing these signals can increase lawyers’ effectiveness as listeners because by doing so, they will better understand the speaker’s content in the abstract as well as the structure of the content and the speaker’s attitude toward the content.

P.S. This post started as a tirade against the conversation stopper “yes, but,” which is a type of discourse marker provided by a listener in taking over the conversation. Here’s a quick summary of how “yes, but” works as an effective conversational technique: it doesn’t.

P.P.S. For a law-review treatment of conversation theory including discourse markers, I highly recommend Linda F. Smith, Always Judged: Case Study of an Interview Using Conversation Analysis. It contains transcripts of effective interviewing techniques. As the abstract states:

Legal interviews are infrequently recorded and rarely studied. The few empirical studies of actual legal interviews have been primarily critical of the lawyers for being too controlling, eager to impose a solution on the clients, and uninterested in the message the clients want to convey. This article presents a case study of something heretofore unavailable – an experienced, expert attorney conducting a successful initial interview with an actual client. This article uses ethnographic conversation analysis to describe the interview in terms of question form, interruptions, control of the floor, and expressions of empathy. It relies upon the insights from prior empirical studies and shows why this is an excellent interview – the client not only is heard, but feels understood, rather than “judged,” by his lawyer.