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.