Robbins: The legal art of listening
Yogi Berra famously said, “You can observe a lot by watching.”
Let me torture that a bit: “You can learn a lot by listening.”
A couple of recent matters come to mind.
A potential new client walked into my office. He was a lovely and conscientious guy. In the middle of telling me his story, he shared that he was already represented by another attorney in the matter about which he had come to see me. After I ummed a moment, I asked, “Why then are you here?”
He sat up straight and looked me in the eye. “You have already listened to me more in the last 15 minutes than he has listened to me in two months!” He then went on a long harangue, the point of which was how could an attorney effectively represent him if he didn’t at least now and then stick a cork in it and listen?!
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I was on a Zoom call with another pair of clients with my co-counsel in the matter. We were considering and discussing whether we should attend a meeting with our adversary, and whether the time would be well spent and prove productive. The clients — brother and sister businesspersons with long experience — opined that they weren’t sure that they wanted to answer any questions the other side might pose and they weren’t sure that the meeting would produce a resolution.
I said, “Well, we could listen to what they had to say.”
To which the clients answered in sibling harmony, “What do you mean?”
“We don’t have to offer them anything. If they ask questions we don’t like, nothing says we have to answer them. The approach that I would take would be to send them an email first and say, ‘We’re interested in what you have to say.’ We would then start the meeting — after some appropriate small talk — with ‘So whatcha thinkin’?’ We might just learn a lot by listening.”
“Do you think,” the brother who was the older of the two, “it would resolve anything?”
“At the least,” I answered, “we might know more about how they’re looking at this.”
“And,” my co-counsel added, “something about their strategy.”
“And if they want to know what we’re thinking?” the client asked.
“I’ll remind them of my email, which offered to listen to what they had to say.”
My co-counsel said, “We can always walk out.”
In another meeting with another client, the client was distraught. It was, and had been, an extremely emotional time for her and the issue about which she had come to see me was distressful and deeply personal. She talked for a very long time with tears, Kleenex, and no interruptions after which she looked at me and offered, “I feel better.”
Note here that I had not yet offered a word of legal advice. I simply listened. Not only did she feel valued and respected, but I learned a ton.
Lawyers are sometimes referred to as counselors at law. I like both parts: the counsel part and the lawyer part. Part of the function of effective lawyering is to support the clients in what is often one of the more difficult times in their lives, especially in family law and criminal matters where the whole world can seem as if it is caving in. Not only can the lawyer shore them up — with both legal and simple human support — but they can learn a lot by listening to what’s important to the client, what the client holds dear, and how the whole kerfuffle came to be.
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As you may have observed, many lawyers like to talk. Especially in a courtroom where they can strut and talk at the same time. And while the paradigm calls for the lawyers to ask the witnesses questions, proper follow-up — oftentimes the key points — is earned by listening to the answers. If one is motormouthing with cotton in one’s ears, what may be the best opportunities are lost.
It is common for people to hear what is being said but hearing is a lot different than listening. We are all guilty of it from time to time. To listen, though, one needs to make a conscious effort not just to hear, but to understand, digest, and take in the import and consequence of what is being said. A bit of empathy helps too.
Once again, Yogi rounded the bases. You can learn a lot by opening up your eyes and ears and taking it all in.
Even in a courtroom.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, 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: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars.”
