Lawyers carry a mental toolbox which makes up the skill sets they acquire as their development progresses. Some skills are early acquisition skills necessary for survival; others are acquired and honed along the way.
Listening is an early acquisition skill younger lawyers must develop absent which they will be irreversibly lost. There are in fact two skills involved: learning to listen effectively, which once mastered, fosters the ability to become efficient at listening to learn.
I have read that the average speed of a four seam fastball is 93.2 mph and that the time it takes a 95-mile-an-hour fastball to get from release of pitch to the plate, is around 425-450 milliseconds. As remarkable as is the skill it takes to hit the thing, that skill is, for some, more likely to be acquired than listening effectively! And yet, none of us can exercise our professional mandates without being effective listeners.
When we have learned to listen, we are ready to learn from listening. Dianne Schilling offers 10 tips to effective listening: (1) face the speaker and maintain eye contact (2) be attentive, but relaxed (3) keep an open mind (4) listen to the words and try to picture what the speaker is saying (5) don’t interrupt and don’t impose solutions (6) wait for the speaker to pause before asking clarifying questions (7) ask questions only to ensure understanding (8) try to feel what the speaker is feeling (empathy) (9) give the speaker regular feedback and importantly (10) Pay attention to what isn’t said—to nonverbal cues. While these suggestions are addressing listening generically, they are a good place to start. Once firmly placed in your toolbox, you are listening. And listening is power. “When people talk, listen completely. Most people never listen” (attributed to Ernest Hemingway).
I am referencing Hemingway while referring to listening skills required by young lawyers because I am addressing a very special kind of listening, allied with the way Hemingway must be read: listening for the spaces. As above, listening not only to what is being expressly said but to what is not being said. Listening for false premises; listening for breaks in continuity or logic; listening for what lies beneath the surface, for the rest of the story. The kind of listening that promotes the inference in criminal law known as the “common law inference” which stipulates that “a sober person usually knows what the predictable consequences of his or her actions are, and means to bring them about”.
Black’s Law Dictionary defines “inference” as a process of reasoning by which a fact or proposition … is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted”. Lawyer’s draw inferences all the time. In making an inference based on what they have been told by their clients, lawyers are listening for the spaces. Judges of course also draw inferences regularly in coming to a conclusion based on the evidence before them on the point, and on other evidence related to the point. They also draw “adverse inferences” from the fact that evidence was not called to explain, or dispute, other evidence. In either case, the inference is based on logical reasoning that requires assistance from the things not being expressly said. The ability to listen for the sense and motivation behind the words is a skill all lawyers need to most effectively serve their clients purpose, and one which we should assist younger lawyers in acquiring. No matter which of the 6 LSO general practice areas younger lawyers gravitate to, listening for the spaces will not just serve them well, it is indispensable to success.
In teaching younger lawyers to listen for the spaces, we are inviting them whether listening to a client in the course of an interview, or to a witness at a hearing, to apply logic and insight, or as in the “common law inference”, reasonable common sense – to discern practicalities not contrary to but explanatory and exploratory of what they may be hearing. We are asking them to take care to listen and therefore to hear in light of human experience. Lawyers are “judges” too. They are called on to exercise judgment in everything they do. The earlier younger lawyers develop and display sound judgment as an offset of informed listening, the better off they, their colleagues and their clients will be.