Listening for Litigators

Jean is an experienced attorney in California—doing mainly litigation.  She told me how she practices listening while taking depositions.

Jean: The main thing I do is I’m genuinely curious about what the defendant thinks.  I’m just curious.

Me: Don’t you have to find weaknesses in their stories?

Jean: That’s an outcome, not an objective.  I’m not looking for “gotchas” as an end in itself.  If I can understand their full story from their perspective, then I can understand where their case is weak, and where it’s strong.  Then in court I have no danger of taking things out of context—I know their context.

Me: Do people share things with you that are surprising?

Jean: Astonishing.  Sometimes their own counsel will elbow them to say, ‘shut up, that’s enough,’ and they’ll push back ‘no, I want to tell my story.’  People just want to be understood. 

Me: Don’t they know you’re hostile?

Jean: They know. But I think the desire to communicate overcomes that.  And, I suspect, if they feel heard and understood, then perhaps they’ll be more accepting of the court’s outcome—they’ve had their ‘day in court,’ and I play a role in that.

Me: Does this work for you?

Jean: Hugely.  The younger lawyers acknowledge me as being pretty effective.  They want to know how I do it.  I tell them, but they don’t get it.

Me: How’s that?

Jean: I have no secrets; I tell them the trick is to be a good listener, which means being curious about what makes the other person tick.  But they don’t seem to be able to get it.

I think in part it’s because they simply do not know how to listen, at all.  Hence they can’t hear me when I try to explain how to listen.  If you can’t listen, you can’t hear someone explain it.  Maybe they think it can’t be so easy.

Maybe it’s because they can’t get out of the adversarial mode.  Maybe that comes with maturity.  You don’t have to fight all the time to win cases.  Sometimes you just go with the flow, and you end up winning because of it.  They can’t seem to grasp that simple Aikido-like principle, use the energy presented to you to find the right answer.  And if you’re right, you win.  And if you didn’t win, well maybe you were wrong.

I was very taken by Jean’s description.  Isn’t this how the law, and lawyers, should function?  With genuine curiosity about the litigants’ respective positions? 

Is being an advocate necessarily at odds with forming relationships?  I’d like to think not, and that Jean is one of those who seems to understand just how to do it.
 

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