Our greatest  failure as plaintiff’s trial lawyers  is  not listening with concentration. We don’t really listen to everything the juror is saying  or in a nonverbal way communicating  to us in jury selection. We don’t do a  good job of making  it clear to that juror that we have heard and accept in a totally nonjudgmental way whatever they have told  us. We  don’t carefully listen to the witness testifying in order to know how  to follow up. Listening is an important  trial and  lawyer skill.

At the Spence Trial College the psychodrama leaders  conduct what is called “the listening exercise.” Its purpose is to teach lawyers to be active listeners.  The person speaking sits  in a chair  and the listener sits  in a chair  alongside but  slightly behind. The  speaker begins  to describe something. The listener tries  to reflect what the speaker is saying  or feeling  simply.  They do not give advice nor say anything other then reflect back in a way that demonstrates total concentration and understanding of  what is being said. It is more difficult than you would think to be the listener

As an aside, during the 1940’s and 1950’s  a psychologist, Carl  Rogers, was well none  for  what  he called “non-directive” therapy. He believed people had the ability within themselves to find  solutions and  know  what to  do once  they clearly understood the situation.  He believed that people were fundamentally good and a desire to become the best people they could be. His approach was  to avoid guidance, direction and advice on  what to do  or think. Instead, he would continually show  his clients  he  was totally listening to what they were saying and would reflect  back to them their  statements, feelings  and descriptions as  accurately as possible. By being  a “mirror” the client would begin to  see the whole  picture and would  figure  out  for themselves the correct solution. You can watch Carl Rogers do this on Youtube.

I suggest it is far more important for the other person to know we really were listening  then it is to try to  tell them what to do about a  problem.  It  also creates  a bond with a  juror who  knows you were really concentrating  on what  they said. When we are  listening for what was  not verbalized through intense concentration and focus we learn so much more. Let’s slow down and really listen. My friend Gerry Spence is fond of the expression “watchful waiting” which means a slow pace of listening and acting  in trial. Not immediately reacting with a knee jerk like reaction, but reflecting and calmly dealing with an issue. It means a slow pace with pauses  in talking to jurors and witnesses. It means a  slow focused concentration  in a trial.

As an example  of  our not  listening, the Honeywell company ran a full page ad  in the Sunday New York times promoting a thermostat with voice control. The layout was a series  of paragraphs about listening. I thought it was an effective ad and it was a wonderful illustration of the lack of listening to each other in today’s world. The paragraphs were:

“No one listens anymore. Somewhere there’s trash filled up to the rim. Because your son doesn’t  listen to you.

Shoes torn to  shreds . Because your dog doesn’t  listen to you.

Dirty dishes fill the sink. Because no one listens to you.

Wouldn’t  it be nice if someone heard you?

Introducing  the first thermostat built to listen. Your voice, your control.”

So, while it  doesn’t seem to be such a big deal and  while we tend to think we already know about listening as well as crediting ourselves as good listeners, too often the truth  is otherwise. Let’s pay attention to this art and learn to do it better. Let’s start listening.