UNDERSTANDING HOW WE COMMUNICATE

I’ve studied communication principles for my entire trial lawyer career. The truth is that because human nature doesn’t change the fundamentals have remained unchanged for hundreds of years. Technology has brought new ideas for good communication, but we humans still process communication in the same way. Here is an outline of some of the basic fundamentals of good communication

Professor Albert Mehrabian at UCLA conducted a well known study regarding how people receive information. [TR1] He is known for his pioneering work in the field of nonverbal communication. His studies reported that in human communication the following is how the message is received:

55%     by the way we look—facial and body expression

38%     by the way the words are said

7%       by the words we use

The results of this study have been questioned by some behavioral scientists, but all would agree that non verbal communication plays a very important role in what our listeners hear and believe you have said

Note the importance of non verbal communication compared to only the words we use. We need to keep this important fact in mind when communicating with the jury. Even such subtle matters as the non verbal communication of squarely facing the person we are talking to by pointing our heart towards the person in an open position can be important. Uncrossed arms (not in the position of protecting the heart), coat unbuttoned with full eye contact can be a significant factor in our communications with jurors.

We need to also keep in mind that while people don’t have a single method of receiving and processing information usually one will dominate. Visual people prefer to talk and think in pictures. “Can you see how that might happen? Kinesthetic people prefer feelings. “Are you able to get your hands around that idea?” Auditory people prefer sounds “Can you hear what I’m saying?”

We should listen for the person’s preferred method of communicating and talk to them in that manner. We should practice the skill of determining the other person’s preferred method. If you say to the visual person, “What are your feelings about that issue?” you aren’t going to have the same reaction as if you had instead said, “What are your views about that?” Consequently, in our communications let’s remember that people have a preferred way of receiving information and try to deliver our communications in that mode

We were given two ears and only one tongue for a good reason

Lawyers just plain talk too much and too long. They often are loud, opinionated and dominate conversations. We bore people by not using plain English and by not listening. We need to learn to become expert listeners. We should stop talking and start asking. Pro-active listening consists of acknowledging that you have heard and asking open ended (not closed) questions: why, what, when, where, how and who. We need to learn to be short, simple and to the point. Advocates are supposed to be great communicators. Great communication can mean success instead of failure. When it comes to communication skills we can look to Shakespeare who tells us in Hamlet that “brevity is the soul of wit” and that “an honest tale speeds best, being plainly told.” That’s good advice for us today.

Horace who lived in 65 BC, had advice about communications which is as valid today as it was when he wrote it. He wrote: “Unless you are brief, our complete plan of thought will seldom be grasped. Before you reach the conclusion, the reader or listener has forgotten the beginning and the middle. [TR2] Winston Churchill agreed with that teaching. He said: “Broadly speaking, short words are the best and the old words when short are best of all.”[1] The goal of a trial is “a good story, well told.”

The great actor, William Macy, has been quoted as saying:

I find the harder thing is to be brave enough to be simple, to stop when you have done it.

Learning to say what we want to communicate simply and briefly is a skill we all must learn.

The psychologist Carl Rogers taught psychologists about the need to listen without being judgmental. To reflect back to the speaker that you heard and understood, but to refrain from being critical or judgmental in the process. He taught “non directional” therapy on the theory that people have the ability to solve their own problems by talking their thoughts to a trained person who mirrors back what they have said. This is what our listening should involve as well for good communication.[2]

The primary idea is that we should be a good listener and never a good note taker if we are involved in professional work. Your goal is to listen. Listening is an active skill. Make good eye contact with people while they are talk and really listen. Never, never, never interrupt. Keep eye contact until the answer is completed no matter what. For example, a successful jury selection process is when jurors do 70% to 80% of the talking and the lawyer only 20% to 30%.

Remember, hearing is not the same as listening. Listening involves a fully engaged awareness focused upon the speaker and what the speaker is saying. That involves eye contact and a concentration on the conversation without thoughts about questions you have, things you want to say when the speaker is done or a shopping list. Posture is part of the process. Leaning slightly forward and maintaining an open posture with good eye contact enhances the process.

Becoming a great listener is an important part of communication skills

Consider Creating Rapport By Being Aware Of Mirroring

Rapport with another person is a powerful method of communicating and persuading. It involves interacting with someone at an unconscious level so that we feel comfortable and trust them. It is when two people are in sync with one another. At a very basic level we tend to like people who are like us. Many sources in the field of neurolinguistic programming demonstrate that when we make a conscious effort to adopt the behavior of another for a short time we can create rapport by being like them. If we note some of the following in another person and copy it or “mirror” it back to them for a few seconds we enhance rapport with that person:

  • Body Posture
  • Rate of speech
  • Manner of speech
  • Key phrases
  • Breathing rate

To mirror someone, you select some of these features in the other person. It is though the other person is looking in a mirror. It is not the same as mimicry. When done properly it can build a sense of trust very quickly. You can practice with people on television until you become comfortable with the idea.[3]

If we are going to communicate well, we need to be aware of what we are reflecting back to the other person. Developing the skill of mirroring is a substantial benefit in good communications

Learn To Have The Courage Of Open, Honest Communications

If we are going to be successful trial lawyers, we must develop the courage to take the mask off and then the mask under that until we stand before the jury as an open, honest and genuine human being. Most of our time is spent pretending to be someone we aren’t or acting different than what we really are feeling. People have special antenna to recognize game playing, insincerity and lack of belief in what one claims. What happens when someone is really honest and being who they really are? We sense that fact and we treasure sincerity. We trust people when we believe they are being really open and honest with us. Consider the possibility of sharing the full truth about your case, your concerns and your fears with the jury. If a trial is a search for truth, shouldn’t the truth start with you?

Think About The Enormous Power Of Self Control

In Death in the Afternoon, Ernest Hemingway writes about the great matador’s needing “Ver Llegar” or what might be called the art of “watchful waiting.”[4] Ver llegar can be translated “to watch them come.” It refers to the courage and ability of the matador to watch the bull come as he charges with no thought except to calmly see what he is doing and make the moves necessary to the maneuver you have in mind. To calmly watch the bull come is the most necessary and primarily difficult thing in bullfighting. Our ability to develop that same discipline in trial and in communications is essential for success. Knee jerk reactions, surges of angry response and interruptions denote a lack of power. Exercising restraint and demonstrating great timing denotes power.

We need to use “controlled passion.” Be calm. Calmness is a sign you are right. Avoid weak words and be on the offensive, not defensive. But in the process don’t be an offensive lawyer. Pacing and timing are elements of good communication. Interruptions and rapid speech do not communicate someone in control and hamper good communications.

Atticus Finch Was Right

In Harper Lee’s novel To Kill a Mockingbird, lawyer Atticus Finch says to his daughter:

First of all,” he said, “if you can learn a simple trick Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view—until you climb into his skin and walk around in it.[5]

The ability to put yourself in someone else’s shoes seeing things from their view point is a powerful technique. In communication we are trying to hear accurately what the other person is trying to say to us and to respond. To do that we must learn to remove ourselves mentally from our position and see it from their standpoint.

We are told there are three primary qualities involved in good communication:

(1) empathy

(2) genuineness

(3) acceptance without judgment.

Empathy is not the same as sympathy. Sympathy might say “I’m so sorry you have that problem,” but empathy would say: “It sounds like you feel very hurt about what was said to you.” Reflecting you heard what was said by mirroring back short statements is important. That doesn’t mean repeating what was said. For example, if the speaker says “I thought I would be discharged from the hospital the next day, but had to stay a week” the response can reflect the feeling you feel is being expressed “That must have really been discouraging.” One can reflect an understanding by stating what you understand is being said. For example, if the speaker says “The doctor didn’t even stop to talk to me after the surgery” the response might be “You felt annoyed that he didn’t care enough to see you.” Practice these three elements of communication.

Here are some other thoughts. We need to be genuine. Never try to fake understanding and empathy. We need to avoid saying the same thing over and over in reflecting or mirroring understanding. Vary the responses you make. Sound empathetic in your voice.

Think About Words And What We Say To Ourselves

To be creative communicators we need to have self confidence. Often our self talk is the source of insecurity. Think about the significance of words we use when we talk to ourselves. Stop saying to yourself “if only” and instead substitute “next time.” What we say to ourself is important. It probably is not “the worst thing that has ever happened to me.” But saying that can make it true.

There are some words that are more important then others. There is an old saying that the following seventeen words will never fail you: prepare, listen, smile, care, choose, focus, believe, relax, act, forgive, pray, trust, change, persist, accept, risk and wait.

There is the story about the wise man who was asked how to become as wise as he was. He said, “There are four words to remember and live by. The first is think. The second is believe. The third is dream. And the last is dare.” Think about words that are important to you.

Remember the significance of Framing

George Lakoff, a U.C. Berkeley professor of linguistics and cognitive science has written extensively on the subject of framing.[6] It refers to how words are structured to create a concept or a metaphor. For example, “litigation lottery, lawsuit abuse, greedy trial lawyers, out of control juries and jackpot awards” are words that are framed in such a way as to create a metaphor or concept in the listener’s mind. How we phrase things is significant in our communications. We should never respond using the opponent’s framing. We should re-frame. For example, “holding people accountable” is a frame that has another connotation than “lawsuit abuse.” We need to think about this concept. Studies indicate that core values are even more important than self interest to most people. Frame the issue as a core value. Look for a core value the listener would identify with in the issue. Analyze how your position conforms to the core value. Frame the issue as that core value and argue from it. For example, “the civil justice system is an important means of making corporations follow the rules” would support a core value that everyone should follow the same rules. For more information, see Mr. Lakoff’s books and visit the website for the Rockridge Institute, a progressive think tank. [7]


[1] www.quotationspage.com/quote/3038.html

[2] Carl Rogers, On Becoming a Person: A Therapist’s View of Psychotherapy (London: Constable, 1961); Carl Rogers, Carl Rogers on Personal Power: Inner Strength and its Revolutionary Impact (Trans-Atlantic Publications, 1978)

[3] Schlomo Vaknin, The Big Book of NLP Techniques:200+ Patterns and Strategies of Neuro Linguistic Programming (BookSurge Publishing, 2008).

[4] Ernest Hemingway, Death in the Afternoon (Charles Scribner and Sons, 1932, 1st Scribner Classics Edition, 1999).

[5] Harper Lee, To Kill a Mockingbird (J.B. Lippincott and Co., 1960, Harper Perennial Modern Classics, 2002)

[6] George Lakoff and Mark Johnson, Metaphors We Live By (University of Chicago Press, 1980)

[7]www.rockridgeinstitute.org

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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