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

Outline Listening Like A Lawyer Listening Like A Lawyer The Lawyer PersonalityThe Lawyer Personality Considerations for Dissolving Barriers to Communication Considerations for Dissolving Barriers to Communication Listening FiltersListening Filters Contents of our own Minds Contents of our own Minds Socio-Cultural Filters Socio-Cultural Filters Ego and Behavioral Blocks Ego and Behavioral Blocks to Listening/Understanding to Listening/Understanding Listening Practice Listening Practice Strategic Questioning:Strategic Questioning: Asking The Best Question 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 be the primary role of the lawyer in the highest lawyer in the highest conception of our profession…. conception of our profession…. Chief Justice Warren Burger 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 Lack of exposure, experience Ignorance (not knowing, unaware) Ignorance (not knowing, unaware)

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

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

Shifting the Listening Paradigm

Active Listening…. one of many listening modalities Encouraging Encouraging Restating Restating Reflecting Reflecting Summarizing 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.” “Lawyers are not like other kids.” On most personality traits, lawyers score dramatically differently from other people On most personality traits, lawyers score dramatically differently from other people On 6 of 18 traits, lawyers score two levels outside the standard deviation On 6 of 18 traits, lawyers score two levels outside the standard deviation

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

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

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

….for Colleagues and Staff: ….for Colleagues and Staff: Better relationships Better relationships Increased understandingIncreased understanding More efficient and effective communicationMore efficient and effective communication Less tension and stress Less tension and stress Possibility of greater creativity 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 Content of our own Minds What IS the content of your thought?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 the rest of your to-do list Thinking of what to say in response Thinking of what to say in response Thinking of a solution Thinking of a solution Thinking of why the other person is wrong Thinking of why the other person is wrong Thinking about a similar thing that happened to you Thinking about a similar thing that happened to you Thinking about what you have to do next Thinking about what you have to do next Worrying about your problems Worrying about your problems Worrying about 3,000 things that might happen Worrying about 3,000 things that might happen

What To Do? Be Aware Conscious Present Intentional

CAVEAT! Continuous Partial Attention Multitasking: The Research* Faster behaviorsFaster behaviors Those who multitask most are those least able to do soThose who multitask most are those least able to do so Poor at sorting out irrelevancy Poor at sorting out irrelevancy Worse at switching between tasks Worse at switching between tasks Worse memory retention Worse memory retention Research: is multitasking deteriorating these capacities in the brain? 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.Nancy Boyd-Franklin, Nancy. Black Families in Therapy: Understanding the African American Experience. Monica McGoldrick, Joe Giordano, and Nydia Garcia-Preto, editors. Ethnicity and Family Therapy, 3rd Edition.Monica McGoldrick, Joe Giordano, and Nydia Garcia-Preto, editors. Ethnicity and Family Therapy, 3rd Edition. Deborah Tannen, You Just Don’t Understand: Women and Men In Conversation, and Talking Nine To Five: Women and Men at WorkDeborah 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 And others………. And others……….

Filters, continued…. Age Gender Class Ethnicity EGOEGO Religion Education (Bias)

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

Listening Filters Culture and Custom Culture and Custom Non-verbalsNon-verbals Biases/Prejudices/ Biases/Prejudices/ Assumptions Assumptions See Project Implicit: /implicit Prior Experience, including Knowledge Prior Experience, including Knowledge For lawyers, this includes legal knowledge/skills/ expertise. Clients bring their own experience and skill.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? Non verbals: What is your assumption about what these signify? Eg. Eg. Nodding?Nodding? Eye contact?Eye contact? Individualism vs. Collective culture: Individualism vs. Collective culture: e.g. privacy and confidentiality.e.g. privacy and confidentiality. How could this be an issue in the client- relationship context?How could this be an issue in the client- relationship context?

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

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

Language in Cultural Context Example #1. Lawyer says to Client: Example #1. Lawyer says to Client: “If there is anything you do not understand, please just ask me to explain” Or, Example. #2 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. Awareness of Personal and Socio- Cultural Filters 4. Focus on EXPERIENCE, not convictions

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

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

ONE MORE FILTER WE ALL HAVE IN COMMON… OUREGOS

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

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. 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  Being more concerned with how the other person sees you than with the other person

Taking things personally, feeling offended Taking things personally, feeling offended Making yourself right and others wrong through futile mental or verbal complaining, gymnastics, explaining. Making yourself right and others wrong through futile mental or verbal complaining, gymnastics, explaining. Wanting to be seen, or appear important. Wanting to be seen, or appear important. Bragging, self- aggrandizing speechBragging, self- aggrandizing speech Exaggerating/inflating accomplishmentsExaggerating/inflating accomplishments Belittling others, actions that diminish, demean, or are meant to embarrass othersBelittling 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 Inspires you Surprises you Surprises you Challenges you, creates resistance in you Challenges you, creates resistance in you Makes you emotional, or evokes your compassion Makes you emotional, or evokes your compassion Justice is open to everyone in the same way as the Ritz Hotel. 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 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 Solitary Reflection in Silence One person shares. One person shares. Silence Silence Pay Attention! Notice your process. Pay Attention! Notice your process.

Second Round of Listening

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

Third Round of Listening

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

Potential of Strategic Questioning see materials for details Greater Clarity Greater Clarity Greater Understanding Greater Understanding Surfacing of Alternatives Surfacing of Alternatives Improved Outcomes Improved Outcomes ComplianceCompliance Empowerment 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 5. CHANGE QUESTIONS 6. CONSIDER THE ALTERNATIVES QUESTIONS 6. CONSIDER THE ALTERNATIVES QUESTIONS 7. PERSONAL INVENTORY AND SUPPORT QUESTIONS 7. PERSONAL INVENTORY AND SUPPORT QUESTIONS 8. PERSONAL ACTION STEP(S) QUESTIONS 8. PERSONAL ACTION STEP(S) QUESTIONS

Group Listening Process Round 3 Silence Silence One person shares reflection. One person shares reflection. Silence Silence Ask Strategic Questions Ask Strategic Questions Silence 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. 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?

JUST Listening 26 W. Gowen Avenue Philadelphia, PA Phone: Sharon Browning, Esq