Humpback whales use a form of communication which is described as a kind of song. Sound travels four times faster in water then land so the whales have a fast form of communication. These songs can last half an hour and are usually divided into sections, called themes. Whales will often repeat the songs over hours and even days. The sound of the baleen whale is the loudest produced by any animal on earth and travels long distances underwater. Whales also use low frequency moans, grunts and thumps as well as high frequency chirps and whistles to communicate.

So why do I tell you this on a trial lawyer’s blog? Because I’ve had a chance to pay attention to communication and the listening skills of people during this past three weeks of recovery from knee revision surgery. It seems to me whether we are talking about how whales and other creatures communicate or we are talking about human communication what really counts is not so much  speaking skills, but rather listening skills.

Listening requires an active concentration, humility to respond to what is said instead of what we think should be said as well as restricting ourselves to listening, period. Nothing more. No responses to show we knew that already. No advice not sought. No ignoring the question asked and telling the person what we think they should hear.  Poor listeners are people whose ego won’t let them honor what is being said and must take control of the subject.

A  client or juror who wants to get something off their chest; who wants to share something just to share it, is not looking for a response of advice or correction of accuracy or anything else except just to have someone hear them. What’s called for is a response that says: “I heard what you said. I understand how you feel. I acknowledge you feel that way” All done without judgement but simply as one who received the message.

If you ask someone a direct and simple question like: “where you there?” You don’t want a response that explains they were out of town. You expect a “yes” or a “no.” This is the problem of the evasive witness who won’t answer a direct question. The question “would it be negligent to drive forward without checking first?” calls for a yes or not. It doesn’t call for a “I don’t know because I checked first.” But, this applies to ordinary conversation where you ask a simple question and you get back what the other party thinks you should know or an explanation of facts you don’t want to know. Listen to how people respond for this problem.

When we are in jury selection or examine witnesses, think about the importance of being a good listener. Really concentrate on what they are saying. On cross examination, really listen to what the witness says instead of planning your next question. Slow the pace down to do it right. When your clients share with you, listen to them with the viewpoint they really want to be heard and not get advise or explanations or anything else except “I heard what you said.”  I know we all think we are good communicators and listeners, but I think if you listen to yourself respond to others you might find you need improvement. Being a great trial lawyer is often the art of being a great listener


  1. Excellent advice, Paul. As usual. I’ve always found my best examinations are those where I’ve prepared well and really know the issues and, because I know where I’m going with the exam, I can really focus on the witness’ answers. Likewise, I don’t take notes during voir dire. I focus on hearing the venire’s response to my questions and following up and letting my support staff to document the responses. The venire knows whether a lawyer really want to engage in a dialog with them or whether the lawyer is just looking to ask the next question on the list. They will share their thoughts (or at least what they think are their true thoughts) with the former lawyer, but not with the latter. The latter lawyer ends up with 12 people on his jury he knows nothing about.

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