Recently I was going back and forth with a colleague about training programs for our developing lawyers. This colleague, a respected friend, looked at the list I proudly provided of the various advocacy, writing, presentation and positioning lessons filling the educational schedule, and responded with the pith of perception “Not a word about listening.” I immediately saw the gap absent in my perception only moments before. And, I knew the truth of which Oliver Wendell Holmes (not the judge, but the judge’s father) wrote in Chapter X of The Poet At The Breakfast Table (1872), when he said “It is the province of knowledge to speak. And it is the privilege of wisdom to listen.” What a great lesson for lawyers, especially trial lawyers, to remember.
In this day and age, the art of listening is disrespected, or at least neglected. As one astute law professor has noted, “listening skills are deteriorating among lawyers and the general public. Distractions and the dominance of visual media and written communication are sapping our attention and our strength at gleaning auditory information.” Another 2021 study has noted that, “[d]espite the importance of active listening for lawyers, legal education has not prioritized the development of this skill,” further noting “the silent treatment that legal education has given to listening.” There are many reasons why we lawyers must work to reverse that decline, prioritize that skill, and end that silent treatment.
Why is this an issue for trial lawyers? It is an issue because trial lawyers have to communicate with, through, and to clients, fact witnesses, experts, judges, jurors, and all manner of other participants in our legal system to fulfill the lawyers’ duties. One must listen to each to understand them and make them understand you. As Gerry Spence noted in “If I were required to choose the single essential skill from the many that make up the art of argument, it would be the ability to listen.” Gerry Spence, How To Argue And Win Every Time 67 (1995). Likewise, in his article on Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker “I am a Litigator”, one federal judge gives direct focus to being “A GREAT LISTENER,” noting that “[a]n attribute of all great trial lawyers is their ability to stay out of the way of their witnesses, who are the ones telling the client’s story. This is impossible to accomplish without honing one’s listening skills.” (As that judge further notes, “To be sure, developing enhanced listening skills is important even if you are not a trial lawyer. For example, these skills are crucial to developing trusting relationships with clients, regardless of your practice area.”). Thus, a lawyer’s success is often defined by the border between effective and ineffective communication.
Failed communication as failed lawyering often comes down to an inability to listen accurately. Whether a lawyer is looking at another person to understand them or a mirror to understand themselves, the title of Alan Alda’s book on listening rings true: If I Understood You, Would I Have This Look on My Face?: My Adventures in the Art and Science of Relating and Communicating. As one legal commentator on the Listening Like A Lawyer blog has said of that book, there are “very real costs of failed communication: ‘[D]isengagement from the person we hope will understand us’ [xvi]. This disengagement can ‘stand in the way of all kinds of happiness and success’ [xvi], including, I think Alda would agree, success in the practice of law.”
So, let’s move beyond the failure and inattention.
One can start with five reasons why active listening skills can make you a better lawyer, according to a practice management observer. First, active listening enhances trust and rapport. Second, it helps all become comfortable with silence, an apt result as “listen” and “silent”, as Alfred Brendel remarked, “contain the same letters.” Third, it can allow for validation and affirmation. Fourth, appropriately practiced, active listening invites clarity through repetition and paraphrase. And, fifth, such listening importantly promotes the focus of maintained interest by removing distractions, including those passing through the mind of a previously less than fully engaged listener. Such communication is central to effective client communications, throughout the relationship from initial retention, through case preparation, case presentation, and even post-matter critique. On such communications, relationships are built.
These are not simply supposed benefits—they have actually been validated in academic studies, such as Teaching and Assessing Active Listening as a Foundational Skill for Lawyers as Leaders, Counselors, Negotiators, and Advocates (2021), which note the clear benefits of active listening for lawyers:
- Active listeners assess and accurately allocate resources necessary to the conversation;
- Active listeners work to create a shared understanding with the speaker by considering both the speaker’s and the listener’s lenses and how they may differ;
- Active listeners work to increase shared understanding with the verbal and nonverbal cues; and
- Active listeners move to a response only after fully exploring and understanding the speaker’s meaning.
Bringing this active listening to legal forums, especially the lawyer-client relationship, drives home the important point that most legal interactions are not supposed to be about the lawyer or the lawyer’s interest, but about the client and the client’s interest, as some have importantly observed. Active listening helps keep that focus where it belongs, and can even enhance perceptions of law firms and not just lawyers, according to some. Indeed, when one looks at Roy Bennett’s Seven Effective Ways to Make Others Feel Important, something lawyers probably aim to do with clients, judges and colleagues, at least three of them involve listening or its aftermath: “3. Do more listening than talking. 4. Talk more about them than about you. 5. Be authentically interested.”
Of course, what is written above has extolled the benefits of active listening without really telling one how to practice it. While it takes more discipline and commitment than just these few steps, they are a good start:
If you would like to improve your listening skills try the following active listening exercise:
Step 1: Listen to the [speaker’s] description of the matter.
Step 2: Restate his/her premise as you understand it and ask for confirmation.
Step 3: Ask open-ended follow up questions.
Step 4: If the [speaker, especially a client] expresses emotions either directly or indirectly acknowledge the feelings.
Step 5: At the end of the appointment [or other discussion] ask if there is anything else he/she would like to say.
[Leota Embleton, Better Listening Skills Make Better Lawyers]
So start with these steps.
In the end, there are many ways to phrase this advice. One could say that “Listening is an essential part, a necessary precondition, of communicating well. Effective listening requires close attention to another person, thoughtful observation not only of words but of body language, withholding jumping to conclusions, and curiosity,” as the Listening Like A Lawyer blog states. Or, one could say, as Gerry Spence did, that “Listening is the ability to hear what people are saying, or not saying as distinguished from the words they enunciate,” and that is a vital skill. Or one could very tersely but truly end the top ten advice points for a developing lawyer heading to trial just as the ABA did—“10. Watch and listen,” emphasis added of course.