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The art of listening

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When a client visits attorney John Rowe’s law office, Rowe’s first priority is to figure out what the client wants. That may sound like a simple task, but sometimes he’s got to chip away at the surface to discover the real reason someone needs his assistance.

“Customarily, I’ll ask them what their goals are, what’s on their mind,” he said. “And then we can ask questions based on that to help zero-in more accurately on that which is their underlying concern, which may be what they expressed or it may be something else.”

Rowe and like-minded attorneys say that in order to serve clients effectively, they have to devote their full attention to what their clients say and how they’re saying it. Word choice, intonation and subtle changes in body language may sometimes reveal a truth that an inattentive attorney may miss. And lawyers who understand the distinction between hearing and listening may have an advantage over those who don’t.

Being respectful

Mark Torma, a lawyer with South Bend’s Drendall Law Office, said that he has learned through discussions with other lawyers that people in his profession may not necessarily be putting the client’s needs first.

“All too often, it’s easier to figure out what’s important to you – what’s more profitable, what’s more interesting,” he said.

Torma recently became the interim executive director of the Volunteer Lawyer Network, based in St. Joseph County. He said many pro bono clients, based on their lack of experience interacting with lawyers, may not be able to express the problems they’re trying to solve. But if he doesn’t let them speak freely, the attorney-client relationship may be off to a rocky start.

“If you cut them short, don’t give them time to breathe and tell their story, generally you don’t get as much cooperation from them,” Torma said. “The important thing to do is to pay attention to the value the client gives each of the cases, and that’s not easy to do.”

Rowe shares a similar philosophy.

“What the people are saying and what they mean likely are not the same,” Rowe said. “And unless I listen appropriately and do my best to determine not only what they are saying but what they mean, then my ability to react adequately – to teach or advise depending upon the need – wastes my time and their money,” he said.

Rowe’s office is in Linton, a town of less than 6,000 people, about 30 miles southeast of Terre Haute, and he thinks that may give him an advantage in reading his clients.

“I am very blessed in that my practice is made up of a lot of folks in whose culture I’ve grown up. That is, it’s a rural, agricultural mining community. When they say something, that elicits all sorts of triggers,” he said. “So I think when we use our vocabulary, our body language, it gives me a leg up on understanding what they’re really saying.”

Watching for cues

Skilled communicators understand that a person’s body language may reveal much more than the spoken word. But if you’re not watching for those cues, you may be missing out on important information.

Barnes & Thornburg litigator Jimmie McMillian has witnessed this behavior in depositions.

“I think part of listening is looking at body language, knowing when it seems like the witness seems like they want to provide a little bit more,” McMillian said. “Sometimes, they’ll look down like they’re thinking – and if you’re not looking at them, you don’t realize that they’re actually thinking about whether they should say the next thing.”

In the public setting of a courtroom, visual cues can help an attorney understand what a witness may be withholding, Torma explained.

“I often think that in the courtroom specifically, for both the lawyers and the clients who are often speaking as witnesses, what’s even more important than listening is watching because everyone is very much aware that they are being recorded,” Torma said. “So it’s actually more important to pay attention to what they do when they’re not talking. It’s fairly nerve-wracking for people, so they take some time to process what they’re going to say.”

Going off-script

McMillian said one challenge in questioning people is that they don’t always react as expected. You may have a long list of questions, neatly arranged in the order you prefer to ask them. But making the most of an interview requires flexibility.

“Sometimes it’s hard to bear off that outline and ask good follow-up questions, as opposed to being locked to the outline and being more focused on your next question than the witness’ answer,” he said.

St. Joseph Superior Judge Jenny Pitts Manier has seen in her courtroom examples of both artful questioning and amateur interrogation. In a recent trial, one attorney would question a witness, listen carefully to the response and then follow up with a question that showed he was paying attention.

“It seemed to be the fruit of attentive listening and very useful trial technique – not for just that person’s client, but also the jury,” she said.

In the same case, the opposing counsel asked essentially the same questions, as if he had not been paying attention.

“If one were reading a jury, one might be able to discern a bit of tedium on the part of the jury,” Manier said.

Alienating a jury may not be the best trial tactic, and sometimes it begins early on, before the jury has been chosen.

“I’ve experienced that many years ago in jury selection, where the counsel rising to do voir dire, it was as if he had been in another building,” she said. That attorney, she recalled, had obviously not listened to the questions that had already been asked of the jury pool.

Manier said that “when you call people off the streets out of their lives and ask them to suspend their lives for this process,” the least attorneys can do is be respectful and attentive and not waste jurors’ time by asking them to answer the same questions again and again.

McMillian McMillian

Narrowing your focus

To be attentive – to be in the moment – attorneys can’t engage in multitasking.

“It’s an art to be patient,” McMillian said. “I also think part of being a good listener is being able to clear out all of the other stuff that we as lawyers have cluttering our minds. There’s kind of this pressure today to get onto the next case, the next thing, the next matter, be efficient. There’s this pressure to move extremely fast all the time. And to be a good listener, sometimes you have to clear all of that out. For the next 10 minutes, an hour, whatever it takes, I’m going to look and think and focus solely on you.”•
 

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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