October 2001

Developing the Fine Art of Listening

When a person visits an attorney, it is generally because he has some problem that he is not capable of addressing on his own. This situation is particularly acute in matters where litigation looms. The potential client has been wronged in some way or has been accused of wrongdoing, but is ill-equipped to pursue or handle the intricacies of litigation. Prospective clients bring an expressive language into the interviewing conversation, and a wise attorney will consider not only the potential legal theories and procedural issues raised during the interview, but will also consider the client’s expressive language as a relevant factor in conducting the interview.

Mention the word “feelings” or emphasize too much of the lawyer’s role as counselor, and many attorneys are likely to write off such talk as touchy-feely nonsense, which at best will have no impact on the success of a particular matter and at worst will shortchange the success of the case in favor of giving clients the warm fuzzies just before they are carted off to jail or sent home with a take-nothing judgment. For a lawyer to hold such a view, however, is potentially to shortchange his or her success in representing his or her clients.

Understanding a client’s expressive language provides significant benefit to a lawyer’s practice. Consider an analogous situation for a moment: Many people have personally experienced a medical doctor’s poor “bedside manner.” The doctor might be technically competent, but his or her interpersonal skills result in frustrated patients, even when the medical outcome is good. Many patients lament that their doctors will not take the time to listen to their concerns. Lawyers who lack the ability to identify and address the feelings of their clients risk the same discontent.

In order to make well-informed plans about a client’s case, an attorney, in addition to formulating innovative legal theories and daring strategies, must learn to listen well to the expressive language of the client. The comments in this article are provided as a framework for the initial attorney-client interview. They are aimed at encouraging lawyers to develop those listening skills that aid in identifying and responding appropriately to expressed and unexpressed emotions caused by the client’s legal problem that can impact the client significantly.

Developing Active Listening Skills
When beginning a conversation with a prospective client, there are three guiding principles for framing the conversation: Rapport, Respect, and Relationship. These “Three R’s” of counseling provide valuable perspectives for listening to a client.

Rapport means the ability to talk and listen to a client and make him feel both understood and important. Respect means valuing the client as a person, and not snickering about the decisions he has made, no matter how ludicrous, stupid, or naïve these decisions may appear to be. Relationship means connecting with the client as a fellow human being — more than simply a source of income or an opportunity to further one’s legal reputation.

The few client satisfaction surveys that exist support the view that clients are indeed frustrated with lawyers who lack strong listening skills.¹ Frustrated clients are far less likely to be forthcoming with key information, and, of course, the quality of the information exchanged between the client and attorney can affect the quality of the representation. In addition, frustrated clients are less likely to actively participate in the teamwork necessary for both the client and the attorney to achieve the best result possible.

Depending on the client and the type of matter involved, a lawyer should also be cognizant of a series of potential factors that can inhibit communication. For example, many clients are concerned about their lawyer’s opinion of them: will the lawyer think they are stupid or dishonest or greedy? Case threat is another potential communication inhibitor, that is, the concern that disclosing “bad facts” might influence the attorney to decline representation.

Moreover, there is the simple fact that communication about potentially sensitive matters sometimes must occur between individuals who may not have developed the degree of trust necessary to facilitate such communication. The attorney must develop a degree of trust and rapport before delving into matters concerning a client’s mental or physical health, familial relationships, sex life, or even his employment history, business decisions, or criminal record. Reminding clients of the attorney/client privilege and of the attorney’s need to know such information can help convince a client to make difficult disclosures, but doing so is only a first step in discovering potentially sensitive information. Developing good listening skills provides another method for facilitating communication on such sensitive issues. Only when an attorney has developed a working relationship of Rapport, Respect, and Relationship can the attorney expect to discuss, for example, a client’s loss of consortium claim or other sensitive areas with the client.

Active listening is a skill that facilitates the Three R’s. Active listening, sometimes referred to as reflective listening, is more than simply listening very closely. Described as the “most effective talk tool that exists for demonstrating, understanding, and reducing misunderstanding,”2 active listening involves identifying a client’s vaguely or inarticulately stated feelings and reflecting them back to the client to show understanding or to allow the client to correct a misunderstanding. For example, a client describing an invasion of privacy claim may say, “I couldn’t believe that all my business was put out for every Tom, Dick, and Harry to hear.” An active listening response from the attorney might be, “So, you were embarrassed that your private information was available to everyone.” If the lawyer’s active listening response is correct, it goes a long way in establishing that he hears and understands the client. On the other hand, even if the active listening response is incorrect, the client is likely

to appreciate the attorney’s attempt to understand and will in all likelihood feel the freedom to correct the misunderstanding. From our work with students, we are aware of the initial reluctance to use active listening. Their responses often include such comments that active listening seems unnatural and that lawyers are not therapists. Certainly, an active listening response after every client statement would be strained and unnatural. Nevertheless, active listening is an acquired skill, and effective active listening requires concentration and experience. Learning to actively listen in an effective and natural way takes practice for the inexperienced, but it is well worth the effort.

Listening for Expressive Language
Using the Three R’s of counseling additionally means learning to listen for emotional words. Emotional words are those used by prospective clients which give clues about how they experience and understand whatever is happening, or has happened. For example, a common emotional word is fear. While people may use words like “afraid” or “fear” in a rather careless and imprecise idiomatic expression of language, often there are real concerns underlying their use. People use the word “fear” sometimes because they are almost desperate. Oftentimes, fear is related to a threat of injury or loss: “I’m afraid I’ll be hurt.” “I’m afraid I’ll lose everything.” “I’m afraid I won’t see my kids.” It is generally helpful to ask these clients about their fears: “What are your fears about this issue? What concerns do you have?” And then, listen!

Will addressing a client’s unexpressed fears use valuable time? Yes, but only initially. Recognizing the underlying concern and allowing the client to speak can save time in the long run. On the other hand, a client who is worried about some unaddressed concern is less likely to focus on providing the kind of complete information that is necessary for quality representation. Referred to as “greater need,” it is a recognition that the failure to address what is of concern to a client can in fact inhibit effective communication.³ Rapport means listening carefully to the client’s fears and allowing the client the freedom to talk about those fears.

Loss is another emotional word. People fear they will lose a job, or their family, or money, or physical abilities, or a marriage, or any other important concern in their life: “I played the game and lost.” “I can’t take another loss.” There is real pain in these words, and it is important that the pain of the client’s real or potential loss is respected.

Anger manifests itself in many different ways and behaviors. People will sometimes say they are “mad” or “furious.” Anger may also manifest itself as a client being verbally aggressive and pushy and demanding. These times may be loud and tense, and they are often related to loss or the fear of loss. Sometimes a client wants to get even, or wants revenge. Or sometimes the client wants justice: “It’s not fair.” “I just want what’s fair, what is due me, what’s mine.”

In counseling, the lawyer has to be in relationship with these angry people. It is not a time to be demanding or controlling or judging. By accepting the person with all of the anger, the counselor helps the person accept the anger for himself. If he knows that the anger will not damage the attorney-client relationship, then the client will begin to calm and talk about it.

Another emotional word is pain, and potential clients may be in physical pain or emotional pain, or both. We hear, “I just hurt all the time,” and this may mean physically or emotionally. When a client says, “Please, help me stop the pain,” it may or may not be something an attorney can do. Hurt is related to pain, and the prospective client may say, “He/she hurt me,” or “continues to hurt me.”

If you have not done so already, find a good counselor you can trust. Budding counselors and therapists are often encouraged as part of their training to identify a good attorney they can trust. At some point in your practice, you will probably have clients who need counseling, regardless of the type of practice you have, just as counselors at times have clients who need an attorney. Legally, as an attorney, there is only so much you can do for someone who is upset and talking about the intense emotional pain of a separation, an affair, business loss, etc. A referral to a counselor can sometimes help manage the emotional upset of a client, while freeing the attorney to pursue the legal aspects of the case.

Active listening requires work to focus on exactly what a client is saying or leaving unsaid, and how it is being said. It is the kind of attention that clients appreciate which facilitates their willingness to provide key information despite other inhibitors that may exist.

What does this mean in practical terms? The first lesson is simple: attorneys must learn to speak plain English. To respond to a client with an extensive or complicated legal explanation will hinder the client from adequate understanding, particularly if the client is already experiencing overwhelming emotions. In this regard, the extensive cognitive comments will only increase the emotional overload.

Simply put, do not use “legalese” or “legal-babble.” In other words, think clearly and precisely, but speak the language of Rapport, Respect, and Relationship. Be clear about what is being said, and give the client the due respect of being heard and of being offered the opportunity of clearly understanding what is being said. This is attorney-client counseling and the fine art of listening.

Learning to listen to the emotional words which prospective clients use will help clarify the legal decisions that an attorney has to make. No different than in medicine, psychotherapy, or other professional endeavors, the law is about real people and the lives they live. In short, the law is a helping profession. In this regard, a lawyer’s work should have a sense of vocation about it, a sense of calling. The work matters to clients and makes a contribution to the history of humankind.

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