As a junior lawyer I sat in on many speakerphone calls between law firm partners and their clients. During one such call I was shocked when the partner rubbed his temples and muttered, audibly enough for the client to hear, “Just get to the f***ing point”. At the time I hadn’t given much thought about what it meant to listen well, but I knew that wasn’t it.
The more I have thought about it, the more I have come to realise just how crucial the art of listening is to the art of lawyering. The glorious, notorious RGB certainly thought so. But believe me when I say that I am not saying this from a holier than thou position. After all, I chose a profession that involves me getting paid to speak. People like me, who enjoy speaking, often neglect the other side of the communication equation. I’m painfully aware that I have a tendency to finish people’s sentences for them. I’m trying to show that I’m listening so attentively that I’m on precisely the same page as the speaker. See! I’m following your thinking so closely I know where you are going with this! But the truth is that it is a terrible habit. And sometimes I get the end of the person’s sentence wrong and that feels rude and awful – because it is.
I just read a really good book about listening: You’re Not Listening: What You’re Missing and Why it Matters, by journalist Kate Murphy. I highly recommend it. But in the meantime, here are some of her key messages.
BENEFITS OF GOOD LISTENING
Attentive listeners elicit more information, relevant details and elaboration from speakers. This is so critical, especially when taking initial instructions and when briefing witnesses. You want to get the full picture early, not when your client is being cross-examined.
Good listeners make better networkers. Talking about yourself doesn’t add anything to your knowledge base. You already know about you. Listening is how we gather intelligence and make connections. Plus it is boring – both for yourself and others – to keep the self-promotion machine broadcasting full-time.
Good listeners are better at detecting deceit. They are more likely to pick up on and explore small inconsistencies that others might have missed or chose to overlook because it was easier to do so or because they made their own assumption about the explanation. A good listener is also more likely to notice hostility or exasperation in a person’s face when they are asked a particular question.
Becoming a better listener also makes you a much better negotiator. Murphy describes how, at the Harvard Law School course on negotiation, students often express worry that opening themselves up to hear another person’s opinion makes them less firm in their own. It can feel unsafe. They are taught, though, that it is better to take a calm, curious and open stance than one that it is angry or alarmed. Listening for evidence that you are wrong, rather than listening to poke holes in the other person’s argument, engages higher order thinking by tamping down the amygdala. Agreeing to listen does not mean that you agree with someone’s position. Although listening is often regarded as talking’s meek counterpart, it is actually the more powerful position in communication. Harvard law students are taught to listen to the other side’s position calmly and analytically, as if they were writing a newspaper or magazine article about it, before considering how to express their own response.
For the most part, Murphy is disdainful of the usual “effective listening” tips, such as reflective listening or keeping your lips pressed together so that the other person doesn’t think you are waiting for a chance to cut in. She says that you don’t need to act like you are paying attention if you are, in fact, paying attention. She says that listening requires, more than anything, simple curiosity.
She does mention a few exercises/thought experiments though. She notes, for example, that many communication training programs incorporate video. Participants – often psychologists or social workers or parents – watch videos of themselves interacting with others to identify missed listening opportunities. (Anyone who has ever done the litigation skills course or other similar video-based training exercises will know just how effective and how awful such learning techniques can be. )
She also advises using the “speech-thought differential” to improve listening. We can think a lot faster than someone else can talk. The average person speaks at about 120-150 words per minute, which leaves a lot of excess bandwidth for taking mental side trips. Unsurprisingly, the key to being a good listener is to not use the opportunity to take side trips – not even side trips to think about your next devastatingly clever response – but to use the additional bandwidth to increase your efforts to understand what someone is saying and what their motivations are for saying it.
She argues that if we stopped using our excess bandwidth to start drafting our next response, that response is actually likely to be better. It does take a measure of confidence, though, to trust that the words will pour forth when needed, and/or to be comfortable to pause to marshal our thoughts before responding. Good listeners accept pauses and silences, from themselves and others, because filling them too soon prevents the speaker from communicating what they are perhaps struggling to say.
Murphy says that it can also be helpful to notice patterns of “support responses”, which encourage elaboration from the speaker, and “shift responses”, which direct attention away from the speaker and towards the respondent. Imagine getting back to the office from Court and complaining that the appearance was really tough going. If your colleague asks you for more detail about how it went, then that’s a support response. If your colleague tells you about his own hearing last month which was even tougher (but incredibly he still prevailed against the odds), then that’s a shift response, and a pretty grim one at that. Good listeners are all about the support responses.
what not to do
We overestimate what we already know and, mired in our arrogance, remain unaware of all we misunderstand.
Murphy uses the analogy of playing catch. When someone says something to you it’s as if they are tossing you a ball. Not listening or half listening is like keeping your arms pinned to your sides or looking away so the ball sails right past or bounces clumsily off you.
Lawyers often drop the ball by misunderstanding the difference between questioning and interrogating. Peppering people with appraising and personal questions like, “What do you do for a living?” or “What part of town do you live in?” is interrogating. You’re not trying to get to know someone. You’re sizing them up.
It can be useful to think about people in your life who frequently drop the ball, and to ask yourself why that is the case. Do they tell the same stories over and over? Do they only talk about how great they are? Are they selfish conversationalists? Are they actually taking in what you are saying at all?
it’s hard work
Careful listening is draining. The best listeners focus their attention and recruit other senses to assist. Their brains work hard to process all that incoming information and to find meaning. Understanding is the goal of listening, and that takes effort. Murphy says that air traffic controllers, who must listen accurately and intently, are limited to one and a half hour to two hour shifts before they must take a break. So spare a thought for our judiciary. And perhaps even for law firm partners whose clients just can’t get to the f***ing point.