I've always been fascinated with this paradox.  How can a lawyer who is incredibly adept in a deposition be such a poor listener in other situations?  To put it another way, how can someone who is so good at listening in one situation, be so bad at listening in another?

If you've never been to a deposition, the process is simple.  The deponent or witness (the person being deposed) is sworn in and asked a series of questions by the lawyer.  A really skilled lawyer can make the deposition seem almost conversational, while at the same time obtaining valuable information for his client's case.  These lawyers know how to use silence to their best advantage.  These lawyers know how to get a deponent to open up about things that they might not open up about otherwise.  Even the most hostile of witnesses will provide information unintentionally when probed by the skillful lawyer.  These lawyers know that careful listening is crucial to their success.

And yet, many of these same lawyers, when discussing the matter with their client, seem to develop amnesia regarding these skills.  They talk over and interrupt  the client.  They don't listen to what the client is saying.  They've already made up their minds as to litigation strategy and their investigation has yielded the facts that they need.  And careful legal research has provided the crucial glue that holds it all together- the precedent.  They don't really care much about what the client has to say.

Some transactional lawyers have similar tendencies.  When dealing with clients, they often  instruct, rather than seeking to understand.  They''ve been there and done this before; dozens of times.  They already know the questions and the answers.

Why do we act this way?  I suspect it's because of two basic misconceptions.  First of all, we believe that a client is paying us for advice.  And we mistakenly believe that if we respond to a client's questions with more questions, the client will view us as ineffective or incompetent.  Secondly, we are trained to develop  and deploy expertise.  And in most situations, we are viewed as the expert.  If there is a legal problem, non-lawyers will look to the lawyer for the answer.  We are perceived as the expert, therefore we must be the expert.  And an expert who asks questions is perceived as being incompetent.

The fallacy in this thinking of course, is that no one has all of the answers.  Further, in many cases, the answers turn upon specific facts.   And the only way to uncover those facts is to ask questions and listen carefully to the answers.

Certainly, in order to practice law, a lawyer must have a certain minimum level of expertise.  That's what the bar exam is for:  to seperate those with such expertise from those who do not possess it.  But the real legal heavy-lifting occurs with  the lawyer who has the expertise and the heavy-lifting skills required to creatively and effectively approach legal problems. 

This may mean stepping off your professional pedestal, rolling up your sleeves and allowing some vulnerability to shine through.   Vulnerability means being willing to admit that you may not have all of the answers.  More importantly it means being willing to admit that someone else may have them.  And it means being willing to listen to that someone, be it a witness, a colleague or a junior associate.

Does this mean abdicating your responsibility of maintaining a professional attitude and demeanor?  Of course not.  It just means being willing to approach a legal problem with an open mind.  It may even mean having to admit to the client that you do not have the answer, but that you will find one for them.  And most importantly, it means asking lots of questions, listening to the answer and then asking more questions.

Law schools (and undergraduate institutions, for that matter) do not teach listening skills.  But make no mistake about it, effective listening is a skill.  How can you develop this skill?  The same way that you develop your other legal skills, by practicing them.

This entire notion may seem so foreign to you that you have no idea where to begin.  You are accustomed to being the person with the answers, not the questions.  You've never really thought about listening and the fact that it is a skill.  If this describes you, then take heart.  Listening can be learned and good listening can be continuously improved upon.  In fact, listening is a process, just as is legal research, cross-examination, and countless other legal skills.  Here's how you can learn to be a good listener:

1.  Approach any situation, but especially client interviews as an opportunity for learning.  Begin with open-ended questions.  Open-ended questions often are a few, key words, such as:  "Oh?", "Tell me more . . ." and "Help me understand . . .".  They are intended to encourage the person to open up with large amounts of information.

2.  Above all, resist the temptation to interrupt.  Nothing will shut a person up faster.

3.  As more information becomes apparent, begin to focus your questions with closed-ended questions.  This type of questioning typically requires a "yes" or "no" or one-word answer.  Closed-ended questions can also be effective with people who appear to be reluctant to divulge information.  When they begin to relax and open up, you can then revert to open-emded questions.

4.  Restate the information provided.  This is typically accomplished by statements like:  "What I'm hearing you say is . . . " and " To summarize . . . "

5.  Do not make the mistake of thinking that if you are listening, then you cannot control the conversation.  Certainly, at trial, as the old adage goes:  "Never ask a question that you don't know the answer to."   This is because witness testimony isn't really for your benefit; it's for the jury's benefit.  But for most other situations, when you are listening and guiding the conversation through well-placed questions, then you are absolutely controlling the dialogue.  Listening is a very powerful posture.

6.  If questions occur to you while you are listening to someone, rather than interrupting, write them down.  Refer to them later, after the person has finished talking.

7.  Do everything possible to avoid making a declarative statement.  Phrase as much of what you say in the form of a question as is humanly possible. 

Finally, practice, practice and practice some more, the art of listening.  The great thing about developing this skill is that it can be done anywhere- at home, at the gym, on the train.  You may be amazed at how much people will open up to you if given the chance, and more importantly, how much you will learn.    Clients, colleagues and the mailman will reveal things to you that they might not reveal to their own spouses.  A lot of it won't be of much value to you.  But some of it will.  And I promise that your willingness to listen will be  of huge value to them.

I wish you much success in your legal career.

As I've written before, the study and practice of law is akin to a trade of sorts.  You learn very technical methods of analysis and reasoning through case law.  You learn to read detailed statutes and regulations.  And you learn procedural rules that are very specific and technical.    Certainly, a key objective of your legal education is to learn to "think like a lawyer."  But thinking skills without technical knowledge won't get you very far in the practice of law.  This is why lawyers specialize.  Our legal system has become so vast and complicated that no lawyer can master all of it.

A trap for new lawyers (and law students) is that they get so caught up in all of the legal "trees" (the rules, the elements of rules, etc.) that they quickly forget what the legal "forest" looks like.  In other words, it's easy to overlook the big picture of a given legal situation.  This phenonmenon also makes for perfect law school exam fodder.  Let me explain.

In my first year Contracts class, we spent a great deal of time on cases which decided things like whether an offer had been accepted, whether an offer was even capable of being accepted, and whether or not there had been a "meeting of the minds" between the parties to a putative contract.  At the very end of the semester, the professor briefly discussed the Uniform Commercial Code (UCC).  For those of you who have studied it, the UCC is a model statute, which was intended to clarify the various states' common law regarding the law of contracts.  Most, but not all states have adopted the UCC.  You also probably understand that a basic provision of the UCC is that a contract for the sale of goods greater in value than $500 must be in writing to be enforceable.(Article 2).

So, we spent an entire semester on the elements of a contract- offer, acceptance, consideraton and damages.  We spent about 15 minutes on the UCC.  In fact, if you weren't paying attention (or were worried about whether the professor was going to call on you), you probably would have missed the UCC discussion.

It's now exam time.  The first question on the test provided a convoluted, complicated fact pattern which suggest all kinds of classic contracts nuances.  It was an oral agreement.  The seller had an old car.  The buyer was seventeen years old.  When the buyer came to pick up the car, it had a huge dent in it, which was different from the photo in the ad.  The buyer was intoxicated when the deal was consummated. Etc., etc. etc.  The examiner offered the simple instruction, "Discuss."

You, having read this blog post, can clearly identify the trap.  The trap is that none of these facts matter, if the jurisdiction in which the deal was consummated had adopted the UCC.  So, the first words on your exam answer should ask whether the UCC applies.  If you immediately jumped into a discussion on contract defenses (minority, incapacity), you would lose valuable points.  The UCC, in this question, is the big picture, aka, the "forest".  If you were so caught up in the factual "trees' that you missed the legal "forest" you probably earned a "B" on this answer.

Similarly, in law practice, it's easy to miss the forest.  This is why, at least in the beginning, when faced with a legal problem, you must carefully understand the facts.  You spend a great deal of time interviewing witnesses and sifting through documents.  You do all of this before you jump to any conclusions about anything.  You make no assumptions.  You simply dig, dig and dig some more.  Only then, after your exhaustive  investigation, do you begin to ask yourself, "What is the issue?"  You begin to research the law.  And finally, you begin to analyze.  Otherwise, you risk giving your client "B" quality advice.

So, my message is simple.  Make sure you are always stepping back and seeing the forest.   Make sure that you understand the details, but also make sure that you understand the big picture.  Develp these skills and you wil be well on your way to becoming a great lawyer.

I wish you much success in your legal studies and career.

I've been in practice now for a number of years.  I try and step back occasionally, in order to assess how I'm doing in terms of my general legal skills development.  The practice of law is like most careers, in that in the thick of the battle, it's difficult to see the forest because all of those trees keep getting in the way. 

That said, I'd like to share two tips that I've come to learn are critical for lawyers, and especially those just starting their practices.

1.  Learn to listen.  Law graduates spend about seventeen years in formal education.  Much of that time is spent listening to someone else.  When we finally graduate, in an almost boomerang-like way, we start sharing everything we've learned over those years.  Suddenly, we find ourselves in the position of being the expert.  We provide advice to people.  As time goes on, we become entrenched in the idea that we must have the answer to every conceiveable question that client's bring our way.  Consciously or unconsciously, we convince ourselves that if we don't somehow come up with an answer, we have somehow failed as lawyers. 

The truth is, however, much more complicated.  We certainly are required to have minimal education, knowledge and skill in order to be granted the privilege of practicing law.   And to some extent, most of us have sufficient knowledge to field the majority of questions that come our way.  However, as any great lawyer knows, the only way to really understand a client's situation is to ask questions.  These lawyers first focus on understanding, and then to be understood.  They have the courage to listen and ask questions- plenty of them.  They don't fear that they will somehow be viewed as inferior because they intuitively know that relentless investigation through inquiry will ultimately lead to better legal advice.

One of the worst sins a law student can commit is "conclusory" thinking.  Essentially, this means jumping to a conclusion that may not legitimately be supported by facts and assumptions within an argument.  Jumping to a conclusion about a legal issue without properly investigating is the same thing.  And the best way to investigate is to begin with a "help me understand" attitude.  Instead of itching to pull the legal advice trigger, take the time to listen to your client, no matter how many times you have faced a similar legal issue.  You might be surprised at what you learn.

2.  When asked the time, don't tell them how to build the watch.   It typically starts with a glazed look in the clients eyes.  Or it may take the form of a look that says "what in the world are you talking about and why are you telling me it?"  These looks tell me I've inadvertently crossed over from providing legal advice, to the "let me tell you how smart I am" zone.  The fact is that most clients want advice.  They want you to tell them what they should do, at least in some cases.  At minimum, they want you to give them options.  Generally, they don't want you to provide them with a great deal of legal support for this advice.  You may have just read the coolest case on electronic discovery, but the client simply wants to know whether or not they can delete an email.  The point is this:  don't fall into the trap of trying to explain too much to a client.

Don't get  me wrong.  I don't mean this in a condescending way.  My advice is pragmatic.  Think back to Christmas vacations when you were in law school.  You could have gone on forever about Hadley v. Baxendale at the dinner table.  You thought it might very well be the most interesting legal case ever decided.  But three minutes into your soliloquy, you realized that you might be the only member of your family, and person on your block for that matter, who felt this way.  Similarly, your clients may not share your interest in intricate and  fascinating legal developments.

And this, by the way, is where tip #1 and tip #2 intersect.  If you begin to listen to your clients and trying to empathize, you are more likely to ascertain their appetite for knowing how to build the watch.  A busy executive, for example, may give countless clues that you need to provide simple advice without a lot of explanation.  An overwrought client, grieving at the loss of a loved one might not have a lot of appetite for the failings of their loved one's last will and testament.  And although we have an obligation to provide the best possible legal advice, we can also further the profession by doing so in an empathetic and caring way.

I wish you the best in your legal studies and practice.

One of the great ironies among law students is the fact that they work incredibly hard toward the goal of becoming a lawyer, and hate that goal once they achieve it.  Students spend a huge amount of time, energy and money traversing the Law School Labyrinth (see my book of the same name, Kaplan Publishing, April 2009).  Getting in and graduating from law school requires dedication, hard work and sacrifice.   Law school is challenging and difficult.  Anyone who has done it understands that.   Sadly, some law students spend a substantial portion of their lives becoming lawyers who end up hating the practice of law.

How can this be?  First of all, starting any new job, much less a new career is difficult and stressful.  The majority of new law graduates end up working in law firms.  And with the consolidation of firms that began in the ‘90s, these neophyte lawyers often find themselves working in firms with hundreds, if not thousands of other lawyers.    The first thing most new lawyers learn to their dismay is that in a firm, they largely lose all control over their schedules.  For the first time in their lives, their needs are subordinate to senior associates, partners and clients.   In school, most students set their own schedules-  when to study and when to play.  In a law firm, schedules are set by someone else and there is very little, if any, time to play.

The billable hour requirement is your new time management master.  Worse, much of the work new lawyers do isn’t even billable.  As a result, new lawyers have to work a great deal of hours, frequently giving up evenings, weekends and holidays due to last minute demands of others.  Even worse yet, the billable hour dragon is also the metric by which new lawyers are compared to other lawyers in the firm.  The comparisons that occur throughout law school- the grading curve, class honors, Law Review, etc.  only get worse when billable hours are used to determine compensation and partner potential. 

And unfortunately, in some cases, this leads to unhealthy competition among new associates.  In a law firm, you will likely be surrounded by a lot of arguably brilliant people.  Even if you’re very smart, you may feel pretty stupid when faced with the typical law firm talent pool.  Further, because most law firm lawyers engage in practice specialties, you are guaranteed to encounter lawyers on a daily basis who are much better than you at almost anything as it relates to those specialties.

New lawyers, who received little feedback (other than grades) in law school, suddenly find their work, pleadings, briefs, memos and the like bathed in red ink by a senior associate or partner.  And the red ink may not even be the result of bad work by the lawyer, it’s simply that the grader has different preferences or practices. 

And then there are politics.  And law firms are frequently partnerships, where every partner gets a vote.  Politics are a part of corporate America and the American Way, for that matter.  But politics taken to an unhealthy level can lead to unhappiness and frustration, especially in the eyes of a younger and idealistic lawyer.  These new lawyers can easily become disillusioned and jaded when they begin to realize that decisions are not always made on their merits, but rather on the basis of political expediency. 

Finally, many new lawyers began the study of law with the aim of helping people, fighting injustice and defending the oppressed.   Unfortunately, law student debt can quickly divert those students into the more “practical” law firm career track.  Simply, the money is too enticing to resist.  So, these students believe, deep down inside, that they have “sold out” for money.  They see their peers working as public defenders and prosecutors and end up hating firm life because they mistakenly believe that after all, the practice of law is really all about money.

Which brings me to the point. 

In spite of all of the above, I believe that most new lawyers should work, at least for a while, in a law firm.  The reason is actually pretty simple.  In a law firm, you are surrounded by lawyers.  And the practice of law is, in reality, a trade of sorts.  You learn the practice of law by doing.  Certainly, law school and the bar exam provide you with a great deal of the skills and knowledge required to practice law-  legal reasoning, effective writing, black letter law and procedural matters.  But with the practice of law, you learn by doing.  There is simply no way around it. 

Until you have actually drafted your first motion for summary judgment, you really cannot fully understand the elements of a claim, defenses, and the use of precedent to effectively support your position.  Until you have conducted due diligence, you cannot understand the critical components of an asset purchase agreement.  The practice of law is at its core, the essence of a trade (at the risk of offending anyone, this is also the same process by which plumbers learn to plumb and electricians learn to electrify).

If you doubt me, do a little Internet research.  In the old days, you could become a lawyer without a Juris Doctorate, or even a college degree for that matter.  Lawyers like Abraham Lincoln became lawyers by reading books, pleadings and perhaps working as a clerk for an established lawyer. 

Certainly, today’s lawyers are infinitely better educated when they sit for the bar exam.  But at its core the practice of law is a trade.  And trades have “tradesmen” (in law firm vernacular, we call them  ”senior associates” or  “partners”), as well as “apprentices” (called, “first-years” or “second- years” and so on).

So here’s the point.  As much as you may hate law firm life, you are in reality, perfecting your craft.  And you are doing it because you are surrounded by a number of lawyers who are better at it than you are.  These lawyers will not only teach you, if you let them, but they will also keep you out of a great deal of trouble.  Law firms not only are populated with great teachers with practical “real world” experience, but generally have incredible resources such as unlimited Lexis and/or Westlaw subscriptions, vast libraries and interesting continuing legal educations programs.

Law firms typically also engage in pro bono programs.  This means that you may be able to practice in one of those areas you dreamed about in law school and actually get paid for it.

Which brings me to my other point.  One of the best places to learn the practice of law is, curiously enough, at a law firm.  You paid to go to law school and learned a great deal.  In a law firm, you will quickly learn a great deal more, and they will pay you to do it.  The practice of law is the perfect intersection between commerce and academia.  You are paid to actually increase your own intellectual capital.  You are paid to increase the value of your most important asset-  your capability as a lawyer.

So, if you are still in law school and struggling with what you perceive as “selling out”, take heart.  You can work in a law firm for a while and maybe still accomplish your objectives.  And you may even find, as many new lawyers do, that law firm life can be collegial, interesting and rewarding.

And if you are in a law firm and struggling with those new lawyer blues, take heart.  More importantly, take an assessment of where you are.  For people of faith, we call it “counting your blessings.”  You have graduated from law school.  You have earned your law license.  You are practicing law.  And, you are likely making more money than you ever have in your life.  Most importantly, you are developing your craft as a lawyer.

Is law firm life tough?  It can be.  But it doesn’t have to be.  If you keep it in perspective and remember the foregoing, it may actually become one of the high points of your legal career.

Best wishes in your legal career.  And if you want to maximize your law school experience, be sure and read my book, Law School Labyrinth- A Guide to Making the Most of Your Legal Education (Kaplan Publishing, March 31, 2009).