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.
Charlie: Through this discussion with Jean, you’ve once again illustrated that old attribute found in many a successful professional…genuine curiosity and the ability to listen & hear the response. Isn’t it amazing how something so simple can be so effective? Consider all the money professional services spend in "screening tools " for the "right candidate" in recruitment and then in development and yet, I don’t know of one that screens for curiosity and listening. Curiosity is a key attribute that can’t be "learned" – you’re either curiosity about the world around you or your not. Without that attribute how can one see the entire picture and determine how components connect to each other or as in many cases, don’t ?
Needless to say, one then needs to be able to Hear & Listen to the response. Can Listening be taught? Well, there are techniques, of course, that can assist people in being better listeners. But I’m of the camp that believes that if you aren’t naturally curious enough to begin with, no amount of "skills training" will enable you to be "skilled" enough (non-judgemental) to actually hear the response correctly. And it will be apparent to the other person exactly how insincere the attempt is. That lack of insincerity and lack of effective communication, as both you and Jean state, is a deal breaker.
All that said, I’d be curious to hear if there are any firms using screening tools for either curiosity and/or effective listening?
Hi, Charlie,
You say, "I think in part it’s because they simply do not know how to listen…Maybe it’s because they can’t get out of the adversarial mode. Maybe that comes with maturity."
For me, curiosity, coming to a situation with a "beginner’s mind" , from a place of "it’s OK, not to know" is possible when one is secure in one’s own skin…when one has no need to "defend" one’s (insecure) self by being "out front" in some way, shape or form…judging, interjecting, telling, one-upping, hijacaking a situation, teaching, telling, interpreting…all a form of ego-driven reactivity that stems from some fear of feeling that "I’m not being seen or heard; I feel invisiable. I seen to be seen as ‘somebody’ ." The feeling that comes with defering, being quiet, and asking instead of telling to too much to bear for such folks…who, inisde, equate that feeling to being ‘nobody."
Related to Barabara’s suggestion, a behavioral-based interview might include questions such as: "Tell me a time you felt OK with not knowing. What was that like for you? How did you react/respond(there is a difference)?" Tell me a time you felt compelled to jump in and "fix", tell, teach… someone else when they took time to be silent during a conversation and you were uncomfortable with the ‘void’?" Tell me a time when you were able to not be adversarial and reached a mutual resolution." Etc.
The maturity you point to is emotional and spiritual maturity…some folks have been curious since they were children and bring this child-like quality to their daily life; others cannot bring their curiosity to bear, have tamped it down, and so bring their child-ish needy self to their daily life. What is the culture of the firm/organization that supports one or the other way that folks show up? And, why?
> [Jean] "…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."
Customer Innovations has a great post today that likewise illustrates the role of context in listening:
> "The Heaths illustrate the “Curse of Knowledge” using an experiment conducted in 1990 by Elizabeth Newton. In that experiment, people were assigned to be either “tappers” or “listeners.” Tappers were asked to select from a list of 25 well-known melodies and to tap out the selection’s rhythm on the table. The listeners would then have to guess the song the tapper was tapping. Tappers predicted that the listeners would guess correctly one out of two times (50%). It turns out that the listeners were only able to guess one out of about forty times (2.5%). The tappers thought it would be easy to communicate their “message” to the listener because, as they were tapping, they were hearing the song in their head. However, the listener wasn’t hearing that song; they were just trying to decipher the message from what sounded like Morse code. I don’t know how many times I’ve seen people try desperately to get their customers to understand when the underlying issue is that the customer just doesn’t have the same background music playing in their heads."
It sounds like Jean listens so well, and with such curiosity, that she goes to trial with a pretty good idea of "the background music playing in their heads."