Listening For Lawyers Effective Communication for Effective Advocacy

Listening For Lawyers: Effective Communication for Effective Advocacy Berks County Bar Association October 23, 2013

Outline Listening Like A Lawyer • The Lawyer Personality Considerations for Dissolving Barriers to Communication • Listening Filters Contents of our own Minds Socio-Cultural Filters Ego and Behavioral Blocks to Listening/Understanding Listening Practice • Strategic Questioning: Asking The Best Question

Evolutionary Considerations

Justice One definition of Justice is “Right Relationship” Fairness, equality, respect, inherent dignity of every person Listening itself is an act of Justice

“The healing function ought to be the primary role of the lawyer in the highest conception of our profession…. Chief Justice Warren Burger “Listening is the oldest, and perhaps most powerful tool of healing” Rachel Naomi Remen

Cognitive and Behavioral Distancing From Those Who Are Not Like Ourselves …the dominant human response to people perceived as ‘other’ Both interpersonal and institutional Lack of exposure, experience Ignorance (not knowing, unaware)

Leads to Development of “Isms” Moral Exclusion: see as ‘other’ and lesser. Dehumanization Lack of empathy, sympathy, compassion Stereotyping Discrimination • Exclusion Legal system

Good News!!! Distancing is nonnormative among those in actual relationship with those in the target group The antidote: Relationship Justice: “Right relationship”

Shifting the Listening Paradigm

Active Listening…. one of many listening modalities Encouraging Restating Reflecting Summarizing

What is ‘Listening Like a Lawyer’? Reflect upon modes of communication in law. In your experience, what stands out for you as the most significant aspect of Listening Like a Lawyer? Name it in a word or phrase.

What Do We Learn In Law School? “In academic culture most listening is critical listening. We tend to pay attention only long enough to develop a counterargument, we critique (other’s) ideas, we mentally grade and pigeonhole each other. Seldom is there a deep, openhearted, unjudging reception of the other. And so we all talk louder and more stridently and with a terrible desperation. MRO’Reilly, quoted in Mark Weisberg and Jean Koh Peters, Experiments in Listening, Journal of Legal Education, volume 57, Number 3 (September 2007

Reflective Listening Continuum* Pure doubt Pure belief < _________ __> Socratic method/Critical Listening Deep Listening Good lawyers and judges know when to use these modalities appropriately. Adapted from : Peter Elbow. Embracing Contraries: Explorations in Learning and Teaching (Oxford, 1986)

The Lawyer Personality Adapted from Understanding and Leading Lawyers, by Dr. Larry Richard “Lawyers are not like other kids. ” On most personality traits, lawyers score dramatically differently from other people On 6 of 18 traits, lawyers score two levels outside the standard deviation

Lawyers…. . Are more skeptical: Greatest deviation from norm. • Lawyers score 90% (general public: 50%) Are more autonomous: • Lawyers: 85% General Public: 50% Have a greater sense of urgency: • Lawyers: 75% General Public: 50% Have a higher level of empathy • (Also see Myers-Briggs data in materials)

Lawyers… Have a lower level of Sociability: (degree to which connect at cerebral or emotional level) Lawyers: 12% General Public: 50 % Utilize abstract reasoning to a greater degree: Lawyers: 82% General Public 50% Are less Resilient: Lawyers: 36% General Public 50% Are most effective in One on One communication. Keep large group discussions to a minimum.

Implications of Collaborative, ‘Generous Listening’ Approach: Attorney-client relationship Information Gathering Choice of strategy Outcomes Client satisfaction Attorney satisfaction Access to Justice

…. for Colleagues and Staff: Better relationships • Increased understanding • More efficient and effective communication Less tension and stress Possibility of greater creativity Listening in and of itself does some of the work for you.

Listening Filters 1. The Content of Our Own Minds 2. Socio-cultural filters 3. Our Egos Content of our own Minds • What IS the content of your thought?

The Process: 1. Examine Your Internal Monologue: What goes on in your head? Thinking of the rest of your to-do list Thinking of what to say in response Thinking of a solution Thinking of why the other person is wrong Thinking about a similar thing that happened to you Thinking about what you have to do next Worrying about your problems Worrying about 3, 000 things that might happen

What To Do? Be Aware Conscious Present Intentional

CAVEAT! Continuous Partial Attention Multitasking: The Research* • Faster behaviors • Those who multitask most are those least able to do so Poor at sorting out irrelevancy Worse at switching between tasks Worse memory retention Research: is multitasking deteriorating these capacities in the brain? *Based on the work of Clifford Nass, Stanford, Communication Between Human and Interactive Media Lab, and Gary Small UCLA, ibrain: Surviving the Technological Alteration of the Modern Mind

Socio-Cultural Filters * Based on the work of: • Nancy Boyd-Franklin, Nancy. Black Families in Therapy: Understanding the African American Experience. • Monica Mc. Goldrick, Joe Giordano, and Nydia Garcia-Preto, editors. Ethnicity and Family Therapy, 3 rd Edition. Ethnicity and Family Therapy, 3 rd Edition. • Deborah Tannen, You Just Don’t Understand: Women and Men In Conversation, and Talking Nine To Five: Women and Men at Work • Susan Bryant, “The Five Habits: Building Cross Cultural Competence in Lawyers” 8 Clinical Law Review 37 2001 -2002 And others……….

Filters, continued…. Age Education Class E G O Religion Ethnicity Gender (Bias)

Differences in Custom and Culture: * How can these affect communication with clients? Formation of trusting relationships Evaluation of credibility Information gathering Attribution of intended meaning from behavior and expression *adapted from Bryant

Listening Filters Culture and Custom • Non-verbals Biases/Prejudices/ Assumptions See Project Implicit: https: //implicit. harvard. edu /implicit Prior Experience, including Knowledge • For lawyers, this includes legal knowledge/skills/ expertise. Clients bring their own experience and skill.

Other issues…. . Non verbals: What is your assumption about what these signify? Eg. • Nodding? • Eye contact? Individualism vs. Collective culture: • e. g. privacy and confidentiality. • How could this be an issue in the clientrelationship context?

Socio-Cultural Rules and Norms Hidden Assumptions about: possessions money time education language world view personality motivations gender roles family Enormous variation in norms and beliefs

Socio-Cultural Conversational Dynamics The Role of Story • The Structure of Conversation The Role of Language Formal and casual speech Context: Custom and Belief

Language in Cultural Context Example #1. Lawyer says to Client: “If there is anything you do not understand, please just ask me to explain” Or, Example. #2 “If I am not being clear, please just ask me any questions: ” What could you say instead?

Four Helpful Attitudes/Behaviors 1. Not Knowing 2. Genuine Curiosity 3. 4. Awareness of Personal and Socio. Cultural Filters Focus on EXPERIENCE, not convictions

What To Do? ? • Know that you do not know. Be CONSCIOUS of this. • Engage in ‘generous interpretation’ of client behavior: adopt “parallel universe”* thinking Bryant, Susan. “The Five Habits: Building Cross Cultural Competence in Lawyers” 8 Clinical Law Review 37 20012002

• Respond with Strategic Questions, not statements. • If you can’t think of anything to say, don’t say anything! Experiment with silence.

ONE MORE FILTER WE ALL HAVE IN COMMON… OUR EGOS

§ Desiring, seeking, or demanding recognition for something you did Being angry, upset, disgruntled, or ‘holding on’ if you don’t get it Trying to get attention by talking about yourself, your experiences, your issues etc. § Giving your opinion when nobody has asked for it and it makes no difference to the situation

§ Being more concerned with how the other person sees you than with the other person Trying to make an impression on others through knowledge, status, physical strength, possessions, good looks, etc. For some, boasting of the OPPOSITE, e. g. a simple lifestyle, lack of possessions, lack of a privileged background, etc. § Bringing about temporary ego inflation through angry reaction against someone or something

Taking things personally, feeling offended Making yourself right and others wrong through futile mental or verbal complaining, gymnastics, explaining. Wanting to be seen, or appear important. • Bragging, selfaggrandizing speech • Exaggerating/inflating accomplishments • Belittling others, actions that diminish, demean, or are meant to embarrass others

REFLECT Which of these behaviors do I own? How and when do I utilize them? How have they served me in the past? Is it time to let them go?

Abandon Judgments Generous Interpretation Parallel Universe Thinking “The more afraid we are, the more certain we become. ” Brene Brown

Listening Practice!!!!

Pay attention during this exercise! Utilize your frontal lobe. Be a witness to yourself.

Listen for the Wisdom/Truth What can you affirm? Again: Generous Interpretation Parallel Universe Thinking

Reflect on These Quotes…

“Justice is open to everyone in the same way as the Ritz Hotel. ” “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. ” Anatole France (Jacques Anatole François Thibault), The Red Lily, 1894

Reflect on these quotes: What, if anything: Inspires you Surprises you Challenges you, creates resistance in you Makes you emotional, or evokes your compassion Justice is open to everyone in the same way as the Ritz Hotel. The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. Anatole France (Jacques Anatole François Thibault), The Red Lily, 1894

Group Listening Process Solitary Reflection in Silence One person shares. Silence Pay Attention! Notice your process.

Second Round of Listening

Group Listening Process Round 2 Silence One person shares reflection. Silence Each listener may ask clarifying questions of the speaker Silence

Third Round of Listening

Strategic Questioning: Asking the best question What questions help clients clarify their own issues?

Potential of Strategic Questioning see materials for details Greater Clarity Greater Understanding Surfacing of Alternatives Improved Outcomes • Compliance Empowerment

Strategic Questioning Question Categories Strategic Questioning : An Experiment in Communication of the Second Kind , by Fran Peavey 1. FOCUS QUESTIONS 2. OBSERVATION QUESTIONS 3. FEELING QUESTIONS 4. VISION QUESTIONS Moving into Strategic Questions……. 5. CHANGE QUESTIONS 6. CONSIDER THE ALTERNATIVES QUESTIONS 7. PERSONAL INVENTORY AND SUPPORT QUESTIONS 8. PERSONAL ACTION STEP(S) QUESTIONS

Group Listening Process Round 3 Silence One person shares reflection. Silence Ask Strategic Questions Silence Group discusses the process.

AWARENESS BEING PRESENT INTENTIONALITY

Eight Behavioral Blocks to Effective Communication adapted from the work of Lenn Snyder, MEd, LCSW See materials for details

AWARENESS!!!!! Default Position: SELF Reflection, not judgment of another

BALANCE Cultivating a reflective, examined life… “The unexamined life is not worth living. ” Socrates

Personal Conversational Dynamics Homework: When reviewing this session, reflect on your own conversational dynamics. Which, if any, or these behaviors and interactions do you engage in? Are you aware of this in the conversational moment? Have you ever reflected on these dynamics following a conversation?

Sharon Browning , Esq JUST Listening 26 W. Gowen Avenue Philadelphia, PA 19119 -1645 Phone: 215 -840 -4772 sbrowning@justlistening. net www. justlistening. net