Vail Law: We don’t learn by talking, but by learning to listen carefully
Except for perhaps a flash of self-discovery, I suspect no one has learned much of anything by talking. Still, we live in an age of talk, talk, talk, of talking heads that make our own heads spin, and talk in all its electronic permutations.
Yet, with all this talk — this deafening cacophony — enlightenment seems more scarce than ever. It’s like drinking from a fire hose.
No one summed up life better than the late, great Yogi Berra, who famously said, “You can observe a lot by just watching.” So, too, it is with listening. Borrowing from Yogi, “You can hear a lot by just listening.” If you’re getting in your own way by too much barking, bloviating, expostulating and pontificating, maybe a little quiet time is in order.
Which brings me — admittedly a bit circuitously —where I always end up; to the law.
The classic legal thrillers almost always feature a dramatic scene where a lawyer — sometimes the hero, other times the villain — is strutting before the court and spouting off like a regular Vesuvius. To be sure, in a court of law, there is time for talk. But the art of lawyering is to let others do the talking. It is the witnesses and not the lawyer who presents testimony. What the lawyer has to say about this or that, if not exactly irrelevant, pales compared to what a witness has to say.
The lawyer gets to give an “opening,” letting the judge and jury get a peek into what the evidence will reveal, and a “closing” which sums up and puts a spin on what was presented in trial. And the lawyer gets to guide those witnesses that he has called and “cross” those called by the other side. While there is great skill in asking the right questions in the right way and in the right order, there is perhaps a higher skill in listening to the answers.
What do we hear?
Too often, all of us hear what we expect to hear or what we thought we heard or what we hope to hear. If a lawyer needs to nudge his witness to the point the witness needs to make or rebut or contradict an adverse witness, he needs to calmly take in precisely what was said. Sometimes the slightest difference in a chosen word or phrasing makes all the difference. Other times, what isn’t said or the literal meaning of what was said should suggest a bit more probing. But too often, we are on to thinking about the next question before the prior one is answered.
One thing I have learned in 30-plus years of lawyering is to slow down. No one is going anywhere. The courtroom is the judge’s day job. The jury has been empaneled. The court reporter has your rapt attention. And, curiously, if you listen, you might find you need to ask fewer questions than you imagined. It is an equal art to cut your outline; at times a gem is shared and you don’t need to beat the horse to death.
Outside the courtroom
Listening is more than in the courtroom.
When a new client first comes in, or an existing client has a concern, the best thing an effective lawyer can do is to do the least talking possible to tease the issue out. How can you understand an issue if your blathering drowns out the history and the narrative that has taken up lodging in the client’s life?
This goes to dealing with other lawyers, too. Sometimes one hears “no,” where “no” was never said. “Maybe,” or “I’m not sure,” or “let’s see” should be taken at face value. If a lawyer — or anyone else for that matter — means to say “no,” it’s a tiny, little word.
A lawyer’s weapons are words. It is with words that we make our livings. They are our spades and pickaxes, our hammers and our nails, our scalpels and our sutures. But to wield words effectively and persuasively is only one arrow in the lawyer’s quiver.
In law school, we all take Legal Research and Writing and there are books with highfalutin’ titles like the “Art of Legal Writing.” I have yet to see a class catalogue, however, that featured Legal Listening. Much like a doctor who is taught to treat but left wanting in instruction about how to prevent, lawyers are taught to sharpen their words — both written and spoken — but are not guided in the art of simply paying attention.
“Explain that to me.” “Tell me again.” “Let me understand that.” “Where did you get that idea?” “Who told you that?” “What do you have to support that claim?” “Where and when did this begin? “Under what circumstances did it end?” “Whose idea was that?” These are the kinds of open-ended questions that help a lawyer crawl into his client’s skin. And help the lawyer understand.
You can hear a lot by listening. And you can learn a lot too.
But … shhh … first you have to listen.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.
It would be really hard to spark a wildfire anywhere near Vail Mountain or Beaver Creek right now. Still, unattended campfires will always draw attention.