Hearing, Listening, and Lawyering:
An Exploration of Listening Skills
Tami K. Lefko and Jennifer Romig
Sixteenth Biennial Conference of the Legal Writing Institute
July 2, 2014
_____________________________________
Teaching and Assessing Listening Skills
Tami K. Lefko
Vanderbilt University Law School
Director of Legal Research & Writing (July 2010 to June 2014)
lefko@post.harvard.edu
The original inspiration for this presentation was an informal talk Judge
Jeremy Fogel of the Federal Judicial Center gave at Vanderbilt Law School
in April 2013, in which he said he believes that law schools need to do a
better job of teaching law students listening skills. Judge Fogel was a family
law judge before he became a federal judge, and that experience – as well as
his practice experience – informed his view that lawyers need to learn to
listen better. He noted that many lawyers he encountered were paternalistic
or dismissive and the clients often did not feel “heard.” He described an
exercise he has his students at Stanford do in class, in which he has them
pair up and listen to each other speak for five minutes without giving any
advice or interrupting, and he said many students cannot sit silently for that
amount of time.
Hearing Judge Fogel’s remarks, I realized that I had not focused separately
on listening skills as part of the curriculum. And when listening skills are
taught today, they tend to be taught as part of the teaching of another
lawyering skill, like client interviewing, witness interviewing, mediation,
negotiation, or ADR. Clinical programs also teach professional skills,
including listening, but at many schools, only a small percentage of students
are able to enroll in clinicals. I propose that we should consider teaching and
assessing listening skills separately, or more explicitly than we tend to now.
Like business schools, law schools could benefit from having separate
communications courses that cover listening skills more directly and fully.
More schools should consider having courses like “Effective Client
Communications,” or even separate mini-courses or full courses on listening
alone.
A recent survey I was given after seeing a resident at Vanderbilt Medical
School who was not my regular doctor included several questions about his
listening skills:
For an example of detailed feedback given by “standardized clients” after
participating in client-interview simulations, see Karen Barton, Clark D.
Cunningham, Gregory Todd Jones, & Paul Maharg, Valuing What Clients
Think: Standardized Clients and the Assessment of Communicative
Competence, 13 Clinical L. Rev. 1, 4-5 (2006).
I like to use clips from TV shows in movies and class, and I particularly like
the “Part 2” clip from “Everybody Loves Raymond,” which is the second part
of an episode that largely focused on active listening. In the first part, Debra
had forced Ray to go to a parenting class with her, and he did poorly when he
was asked to roleplay how he listens to their daughter. But in Part 2, he had
a little more success with his own parents. The most relevant part begins
about 50 seconds in and continues for a little over two minutes.
The “Big Bang Theory” clip is also entertaining and relevant – Sheldon and
Leonard realize they are talking past each other and they try using a chess
timer to give each other a chance to speak – but the clip itself has subtitles
that are distracting (and I do not think they can be turned off).
Finally, the clip from “The Office” is of Dwight trying and failing to seem
interested in what other people have to say.
Selected Bibliography
With thanks to Zeterrika Tanner and Amanda Nguyen at Vanderbilt Law
School and Andrew Hirsch and Utena Wang at Emory Law School for their
assistance with this research, and to Jennifer Lindsay of Vanderbilt Medical
School for her insights into medical school training in listening.
I.
Teaching Listening Skills in Law School
John L. Barkai, How To Develop the Skill of Active Listening, 30 Practical
Lawyer 73 (1984).
Robert Bostrom, Robert French, Philip Johnson-Laird, & Cynthia Parshall,
Review and Evaluation of the Development of a Listening Comprehension
(LC) Section of the LSAT (2004).
V. Pualani Enos & Lois H. Kanter, Who’s Listening? Introducing Students to
Client-Centered, Client-Empowering, and Multidisciplinary Problem-Solving
in a Clinical Setting, 9 Clinical L. Rev. 83, 91-92 (2002).
Neil Hamilton, Effectiveness Requires Listening: How to Assess and Improve
Listening Skills, 13 Fla. Coastal L. Rev. 145 (2012).
Kenneth Olson, LSAT Listening Assessment: Theoretical Background and
Specifications, LSAC Research Report 03-02 (2003).
Jennifer Romig, Listen Like a Lawyer Blog, www.listenlikealawyer.com.
Mark Weisberg & Jean Koh Peters, Experiments in Listening, 57 J. Legal
Educ. 427, 428 (2007).
II.
Teaching Listening Skills Generally
Kathy Thompson, Pamela Leintz, Barbara Nevers, & Susan Witkowski, The
Integrative Listening Model: An Approach to Teaching and Learning
Listening, 53 J. General Educ. 225 (2004).
III.
Teaching Communication Skills (Including Listening Skills),
Emotional Competence, and Professionalism in Law School
John Barkai, Teaching Negotiation and ADR: The Savvy Samurai Meets the
Devil, 75 Neb. L. Rev. 704, 738 (1996).
John Barkai, The Lecture-in-Disguise, 19 N.M. L. Rev. 117 (1989).
John L. Barkai & Virginia O. Fine, Empathy Training for Lawyers and Law
Students, 13 Sw. U. L. Rev. 505 (1983).
Karen Barton, Clark D. Cunningham, Gregory Todd Jones, & Paul Maharg,
Valuing What Clients Think: Standardized Clients and the Assessment of
Communicative Competence, 13 Clinical L. Rev. 1 (2006).
Phillis E. Bernard, The Lawyer’s Mind: Why a Twenty-First Century Law
Practice Will Not Thrive Using Nineteenth Century Thinking (with Thanks
to George Lakoff), 25 Ohio St. J. on Disp. Resol. 165, 200 (2010).
Beryl Blaustone, Training the Modern Lawyer: Incorporating the Study of
Mediation into Required Law School Courses, 21 Sw. U. L. Rev. 1317, 1319
(1992).
Barbara McAdoo, Sharon Press, & Chelsea Griffin, It’s Time to Get It Right:
Problem-Solving in the First-Year Curriculum, 39 Wash. U. J.L. & Pol’y 39,
48 (2012).
Angela McCaffrey, Hamline University School of Law Clinics: Teaching
Students to Become Ethical and Competent Lawyers for Twenty-Five Years,
24 Hamline J. Pub. L. & Pol’y 1, 52 (2002).
Jacqueline M. Nolan-Haley & Maria R. Volpe, Teaching Mediation as a
Lawyering Role, 39 J. Legal Educ. 571, 575, 576 n.44 (1989).
Roark M. Reed, Group Learning in Law School, 34 J. of Legal Educ. 674
(1984).
Elizabeth Reilly, Deposing the “Tyranny of Extroverts”: Collaborative
Learning in the Traditional Classroom Format, 50 J. Legal Educ. 593, 607
(2000).
Laurie Shanks, Whose Story Is It Anyway? Guiding Students to ClientCentered Interviewing Through Storytelling, 14 Clinical L. Rev. 509, 510
(2008).
Rose Voyvodic & Mary Medcalf, Advancing Social Justice Through an
Interdisciplinary Approach to Clinical Legal Education: The Case of Legal
Assistance of Windsor, 14 Wash. U. J.L. & Pol’y 101, 124 (2004).
Robin Wellford Slocum, An Inconvenient Truth: The Need to Educate
Emotionally Competent Lawyers, 45 Creighton L. Rev. 827 (2012).
IV.
Comparisons of Skills and Professionalism Instruction in Other
Professions
A.
Business School
Joshua D. Rosenberg, Interpersonal Dynamics: Helping Lawyers Learn the
Skills, and the Importance, of Human Relationships in the Practice of Law,
58 U. Miami L. Rev. 1225 (2004).
B.
Medical School
John L. Barkai & Virginia O. Fine, Empathy Training for Lawyers and Law
Students, 13 Sw. U. L. Rev. 505 (1983) (discussing an approach based on
medical school training).
J. Gregory Carroll & Judy Monroe, Teaching Medical Interviewing: A
Critique of Educational Research and Practice, 54 J. Med. Educ. 498 (1979).
Molly Cooke, David M. Irby, & Bridget C. O’Brien, Educating Physicians: A
Call for Reform of Medical School and Residency (2010).
Ronald M. Epstein, Mindful Practice, 282 J. Am Med. Ass’n 833, 838 (1999).
Virginia K. Fine & Mark E. Therrien, Empathy in the Doctor-Patient
Relationship: Skill Training for Medical Students, 52 J. Med. Educ. 752
(1979).
Neil Hamilton, Assessing Professionalism: Measuring Progress in the
Formation of an Ethical Professional Identity, 5 U. St. Thomas L.J. 470, 505
(2008).
Bobbi McAdoo, Physicians: Listen Up and Take Your Communications Skills
Training Seriously, 29 Hamline J. Pub. L. & Pol’y 287 (2008).
Larry V. Pacoe, Ray Naar, Irvin P.R. Guyett, & Richard Wells, Training
Medical Students in Interpersonal Relationship Skills, 51 J. of Med. Educ.
743 (1976).
Paula L. Stillman, Andrew Silverman, Michele Young Burpeau, & Darrell L.
Sabers, Use of Client Instructors to Teach Interviewing Skills to Law
Students, 32 J. Legal Educ. 395 (1982).
Paula L. Stillman, Jane S. Ruggill, Paul J. Rutala & Darrell L. Sabers,
Patient Instructors as Teachers and Evaluators, 55 J. Med. Educ. 186 (1980).
Paula L. Stillman & Darrell L. Sabers, Using a Competency-Based Program
To Assess Interviewing Skills of Pediatric House Staff, 53 J. Med. Educ. 493
(1978).
Paula L. Stillman, Darrell L. Sabers & Doris L. Redfield, The Use of
Paraprofessionals To Teach Interviewing Skills, 57 Pediatrics 769 (1976).
Paula L. Stillman, Darrell L. Sabers & Doris L. Redfield, Use of Trained
Mothers To Teach Interviewing Skills to First-Year Medical Students: A
Follow-Up Study, 60 Pediatrics 165 (1977).
Nicholas G. Ward & Leonard Stein, Reducing Emotional Distance, 50 J. Med.
Educ. 605 (1975).
C.
Other
Scott T. Walters, Melissa Alexander, & Amanda M. Vader, The Officer
Responses Questionnaire: A Procedure for Measuring Reflective Listening in
Probation and Parole Settings, 75 Fed. Probation 67 (2008).
V.
Listening and ESL
Debra S. Lee, Charles Hall, and Susan Barone, American Legal English:
Using Language in Legal Contexts (2d ed. 2007).
VI.
Selected Textbooks Discussing Listening Skills
Stefan H. Krieger & Richard K. Neumann, Jr., Essential Lawyering Skills:
Interviewing, Counseling, Negotiation, and Persuasive Fact Analysis 27-28
(Wolters Kluwer 4th ed. 2011) (discussing what clients dislike in a lawyer and
noting that they “despise lawyers who . . . talk too much and listen too little”);
id. at 49-51 (discussing listening as one of the eight oral communication skills
that are themes throughout the book); id. at 89-95 (discussing client
interviewing, including active listening techniques).
Robin Wellford Slocum, Legal Reasoning, Writing, and Other Lawyering
Skills 39-42 (3d ed. 2011) (including a checklist of client interviewing criteria
to consider, including items related to active listening); id. at 84-87
(discussing client interviewing techniques, including active listening).
VII.
Selected Conference Presentations Touching Upon Listening Skills
Kenneth Chestek, Indiana University – Indianapolis School of Law, “Just the
Facts, Ma’am: Using Client Interviews and Role Play to Teach Fact
Investigation” (Central States Regional Legal Writing Conference 2011).
Susan H. Joffe, Maurice A. Deane School of Law at Hofstra University,
“Learning to listen: Gathering facts from a client interview” (15th Biennial
LWI Conference, 2012).
Lindsay Saffouri, Patricia Plunkett Hurley, & Lucinda Sikes, UC Berkeley
School of Law, “Teaching Students to be Effective Lawyers” (15th Biennial
LWI Conference, 2012) (discussing the 26 “effectiveness factors” related to
competent lawyering, including listening, developed by Marjorie Shultz and
Sheldon Zedeck).
Annette Torres & Cheryl Zuckerman, University of Miami School of Law,
“Teaching Effective Client Communications” (Capital Area Legal Writing
Conference, Spring 2013) (describing an advanced writing course called
“Effective Client Communications,” which included discussion of “how to
maintain eye contact and listen” and required the students to conduct a client
interview).
VIII. Additional Bibliographic Resource
Arturo Lopez Torres, MacCrate Goes to Law School: An Annotated
Bibliography of Methods for Teaching Lawyering Skills in the Classroom, 77
Neb. L. Rev. 132 (1998).