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.