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COMMENTARY
Do attorneys really listen?
Elisa Reiter and Daniel Pollack | January 19, 2024
David Brooks’ 2023 book, “How to Know a Person,” provides not only an
interesting read, but insight as to how many of us—attorneys included—
fail to listen to our clients, to other professionals, and to others.
Technology has arguably impacted our social skills, further undermined
by what could have been years of isolation occasioned by COVID. How
can we improve our listening skills? As attorney Bill Underwood of
Dallas succinctly says: “Talk less. Listen more.” Learn to pause. For
loquacious lawyers jaded by years of practice, particularly those who
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have had the discipline to specialize, how can we revamp, refocus and
learn to listen more?
Brooks contends that “[o]ur social skills are currently inadequate to the
pluralistic societies we are living in.” He argues that in every group, there
are “Diminishers” and “Illuminators.” Diminishers are belittling and
mark their territory by using others. For those of us whose practice
directly or indirectly involves psychology, not too many days pass
without hearing a client characterize a business partner or a spouse as a
narcissist.
Narcissists gaslight; they are takers, who use others to their own
advantage. By contrast, Illuminators want to know more about others
and tend to “… know what to look for and how to ask questions at the
right time.” Brooks indicates that Diminishers have a propensity to size
others up with a first impression, being too “self-centered” to look
beyond themselves. Diminishers are so busy talking, they fail to listen.
They focus on the impression they are making, rather than the person
standing before them. Brooks characterizes Diminishers as being caught
in the throes of “naive realism,” such that a Diminisher’s ego leaves them
convinced that everyone sees the world the same way that they do.
Diminishers must reach beyond a natural proclivity to objectify those
they meet, and instead dig deeper. We cannot presume that being
involved in the same practice group, firm, or networking group
necessarily means that everyone in the group is the same. Moreover,
people change over time. How many attorneys have nodded benignly as
the client sitting in their office bemoans that the client’s business
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associate or spouse is simply “no longer the person I partnered
with/married”?
At the other end of the spectrum, according to Brooks, is Illuminationism,
which he argues includes offering “a gaze that says, ‘I’m going to trust
you, before you trust me.’” In the words of Joel Bloom, immediate past
president of New Jersey Institute of Technology: “How many people
really look one another in the eye when they first meet? How many
people shake hands [at a first encounter] looking down at their shoes?
Haven’t you often wondered what was so interesting about their shoes?”
Illuminators like Bloom are more than networkers or peacemakers.
They know how to make each person feel like that person is at the center
of attention. Illuminators are capable of “tenderness.” Illuminators are
open to sharing others’ experiences, and to explore ideas. Brooks shares
the story of Dr. Ludwig Guttmann, a German Jew who escaped Nazi
Germany. Guttmann changed the way paraplegics were treated. He
stopped heavily sedating them. Instead, he coaxed them to get out of
their beds and to exercise. Guttmann’s work, Brooks notes, led to the
development of the Paraplegic Games in 1960.
Illuminators are open to a holistic approach. How can we help families
who are enmeshed in dysfunction, put their children’s best interests first
and foremost? It is not just about listening. How can we improve our
ability to converse? Brooks’ subtitle is “The Art of Seeing Others Deeply
and Being Deeply Seen.” Lawyers who are highly skilled at cross-
examination have not only taken the time to organize their case and pull
their exhibits and scripts together—they listen. They are fast on their
feet. They may be Diminishers to the extent they have been taught to
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never ask a question to which they do not already know the answer, but
they have learned to listen and to pivot when they strike gold. And, they
know the importance of simply not talking. Many witnesses love to fill a
vacuum. Intrepid, illuminating lawyers let witnesses do just that.
Do we need to be students again? To prepare questions to facilitate
drawing out others on “flashcards” on the path to listening? Good
lawyers analyze their cases using flow charts—often attaching the
applicable statutes that impact their case, and then charting what
exhibits and witnesses can help them prove the essential elements in
their case, as driven by law. The case is their muse.
Good attorneys are like good writers and journalists. Writers develop a
lede. There is a beginning, middle and end to every story. Good writers
ask “who, what, when, where, how and sometimes why.” Not everyone is
innately equipped to ask good questions. Cross examination works in the
context of legal questions. In cross examination, we try to ask closed
questions, to which a witness can respond with a “yes” or “no.” The
impact can be resounding, as we recently observed by the excellent skills
of Congresswoman Elise Stefanik. Simple words. When the witness
cannot answer the question asked, it tends not to play well. Certainly,
some questions cannot be answered with “yes,” “no,” or “I don’t know.”
Yet many questions call for a simple response.
We live in an era of remarkable polarization. While social media allows
for immediacy of contact and freedom of expression, we are subjected to
verbal assaults as never before. It is easier to “unfriend” someone,
figuratively and literally, than to be open to listening to someone with an
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opposing viewpoint. Change comes in listening and being open to other
viewpoints.
Brooks questions whether the polarization we are experiencing is the
result of “loneliness” and “meanness.” To find out, we need to really
listen.
Elisa Reiter, a Senior Attorney with Underwood Perkins, P.C. in Dallas,
Texas, is Board Certified in Family Law and in Child Welfare Law by the
Texas Board of Legal Specialization. She has served as an Adjunct
Professor at SMU. She is also admitted to practice in the District of
Columbia, Massachusetts, and New York. Contact: ereiter@uplawtx.com.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of
Social Work in New York City. He was also a Commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon
commission created to examine the institutional responses to sexual
grooming and abuse by former USA Gymnastics physician Larry Nassar.
Contact: dpollack@yu.edu.
Original link: https://www.law.com/therecorder/2024/01/19/do-attorneys-really-
listen/