Are We Hearing What They're Saying

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Are We Hearing What They're Saying?

Active Listening Skills for Lawyers

By Ruth Ann McKinney

Clinical Professor of Law

The University of North Carolina School of Law


I. Introduction

Much has been written about the importance of listening actively to what others are saying.[1] For lawyers, the importance of active listening is threefold: (1) as attorneys and counselors at law, it is critical that we be able to establish rapport with people from a wide variety of backgrounds who come to us for help.[2] Many of these people are under stress, often overwhelmed with feelings that block communication of much of what we need to know to give them appropriate legal advice; (2) often in the practice of law, we need to gather information from people against whom we have taken an adversarial stance. We need to have the skills necessary to gain as much information about what they know as we can, despite their natural defenses that make it difficult to communicate with them;[3] and (3) as attorneys, we are members of an intense, highly-pressured profession which emphasizes the importance of ideas over feelings. This emphasis on the cognitive often bleeds over into our personal lives as well, leaving little room for healthy, balanced lifestyles and relationships with others that could reduce our stress and enrich our lives.[4] We need to have the skills to listen fully to those we care about in such a way that they feel accepted and nurtured, rather than judged and appraised, if we are to maintain the relationships we need to add depth to our personal lives.

II. What Active Listening Is (and What It Isn't)

Despite the undisputed importance of listening as a critical personal and professional skill, few of us receive explicit training in the art of listening. Some individuals seem to have more of a natural bent to be good listeners than others, intuitively demonstrating from an early age the behaviors that encourage others to express themselves. Others learn these skills through training in the helping professions such as counseling, social work, and psychology. Regardless of where they acquire their skills, however, good listeners share the ability to demonstrate all of the following in their interactions with others: genuineness (an open honesty about their own feelings); empathy (the ability to see the world through someone else's eyes); non-judgmental valuing (the ability to listen without condemning or praising); mutual respect; sensitivity to differences; and commitment to listening to both content and affect. Happily, despite varying levels of inherent listening skill, all of us can learn more about listening and can improve significantly our abilities in this area by practicing what we have learned.[5]

There are a few principles of active listening that will help clarify what the concept means. First, although we tend to think of listening as a passive activity in our culture (and, conversely, of talking as active), good listening is hard work and takes action on the part of the listener. After you have listened hard to someone, you need to rest before you try to listen hard again to someone else. Second, only rarely in our culture are we ever actually listened to. The times during which he have actually been heard are so rare, in fact, that most of us can recall at least some of them with crystal clarity as being especially meaningful or even life-changing encounters. Third, people tend to talk about what other people will actively listen to. Hence, if you want someone to talk about something, actively listen and communicate that you are actively listening. Fourth, good listening requires attention to non-verbal as well as verbal behavior. Finally, while good listening creates trust, lowers defenses, and builds bridges, it is NOT therapy. An attorney can be a very effective active listener without moving into psychologically-uncharted territory. If in the course of listening closely to a client you begin to sense that the individual is suffering from serious psychological distress for which he or she needs professional counseling, the attorney can and probably should react in a genuine and caring manner by suggesting a referral to an appropriate professional.

III. Skill Development

Effective listeners recognize that we all communicate on two levels almost all the time: (1) on one level, we almost always communicate some content.[6] This level is considered to be the cognitive side of a communication, and is often the part of a communication with which attorneys are most immediately concerned. Experts have hypothesized, in fact, that attorneys are peculiarly preoccupied with content over feelings, being both predisposed by nature to focus on cognitive issues, and then trained in law schools to intensify that focus;[7] (2) on a second level, we almost always also communicate affect or feelings. For a variety of reasons, it is this second level of communications, that of feelings, that is often ignored by listeners who are focusing on cognitive content instead. Robert Carkhuff and numerous others professionals in the helping professions have firmly established the fact that listeners who attend to only one level of communication fail to "hear" much of what is said. Moreover, since people only talk about what is attended to, individuals who are not fully heard tend to shut down because they have been, at least in part, ignored. Thus, in order to fully communicate with others, we need to develop the ability to hear both content and feelings, and then to communicate the fact that we've heard both back to the speaker. It is not enough to hear. We have to also let the speaker know that he or she has been heard.

Fortunately, while active listening is an invaluable skill, development of that skill is neither complex nor time-consuming. Rather, conscious mastery of the following four behaviors[8] (all of which we already know how to do to one degree or another) will allow you to hear others and to let them know that they have been heard:

A. Attending Skills: Active listening necessitates letting the speaker know you are listening to him or her. In Basic Attending Skills, Allen E. Ivey and Norma B. Gluckstern emphasize the importance of three key behaviors that help someone know you are attending to them: (1) eye contact; (2) attentive body language; and (3) verbal following.[9] They explain that there is no need to stare at someone, but that it is important to look at someone when they are speaking to you. People's comfort with eye contact varies from individual to individual and from culture to culture. For the listener, however, the important point is that eye contact generally lets the speaker know you're listening, and helps keep you focused on what is being said as well. Similarly, a relaxed posture that communicates interest and concern encourages communication. Visualize a listener who is turned away from the speaker or keeps his or her arms folded rigidly while the speaker is talking. Neither of these behaviors communicates interest or attention. Similarly, verbal following is simply the practice of letting the speaker know you are paying attention to what is being said. There are three main types of verbal following, all of which will be discussed in detail below: (a) minimal encouragers; (b) paraphrasing of content; and (c) reflection of feeling. As Ivey and Gluckstern state, "take whatever the [speaker] has said and respond to it in a natural way. Direct whatever you may say to what the [speaker] has just said or said earlier in your session. The [speaker] never needs to introduce a new topic . . . simply stay with what has already been said. In summary, don't topic jump."[10] A final type of verbal following is to use small words to indicate that you are tuned in and interested in what's being said, "oh, I see"; "um hum"; "oh, my" are examples of those kinds of conversational tools.

B. Minimal Encouragers: A minimal encourager, according to Ivey and Gluckstern, is a question that facilitates further communication.[11] The most typical minimal encourager is an open-ended question -- one which is phrased to avoid a yes or no response, but rather encourages an expansive explanation. As lawyers, we are familiar with this kind of open-ended question, which is most often used in direct examinations of friendly witnesses. Frequently, open-ended questions start with words such as "How," "What," and "Could." For example, a minimal encouraging question would be "What happened next?" which would tend to increase communications. "How did you feel about that?" is another example of an open-ended question. In contrast, a directed question such as "Are you married?" tends to get a one-word response. Accusatory questions, which often begin with "why," can chill a communication quickly. Instead of asking, "Why didn't you pay your rent?" it is more productive to encourage further communication by asking instead, "Could you tell me more about your decision not to pay your rent?"

C. Paraphrasing: Paraphrasing is the active listening skill which is often least threatening to us in a culture that does not encourage attention to feelings. Development of this skill, however, is not as easy as it would appear at first blush. Often in conversations we have a tendency to be forming our response to a communication -- thinking about what we're going to say next -- to the point that we do not fully take in what the other person has in fact said. Paraphrasing the content of what has just been said -- taking the content and restating it briefly in your own words -- is a powerful and effective way to stay focused, to ensure that you've completely understood the content of what's been said, and to reassure the speaker that you are listening carefully.

D. Reflection of Feeling: All our communications carry a feeling component. Robert Carkhuff asserts that these feelings can most easily be categorized as either positive ("up") feelings of one kind or another, neutral feelings, or negative ("down") feelings. Sometimes a speaker will state expressly what his or her feelings are. For example, a speaker who says, "I was so angry when my wife left me" has already clearly stated what he feels. In such a situation, the listener (assuming that he or she is attending well enough to hear the feeling statement) can paraphrase the feeling, preferably adding a new dimension to it to crystallize the emotion for the speaker. In the present example, for instance, the listener could respond, "It really burned you when your wife walked out on you." Note that, for effective listening, the speaker should make an effort to restate the feeling affirmatively, not to ask if the speaker is feeling a certain way. Thus, responding by asking, "Are you mad at your wife?" would not be as effective as the affirmative statement set out above. (Caveat: of course, if you really don't understand the feeling, you can ask a question, preferably a more open-ended one, to get clarification. Alternatively, you could simply wait, listen some more, and the speaker's feelings might become apparent as time goes on). When a speaker does not expressly state his or her feelings, they are there nonetheless. In order to be a good active listener, you need to discern what those feelings are. Depending on where you are in the communications process, you might then choose to reflect that feeling back to the speaker so he or she knows that you have listened accurately to their whole experience (not just to the intellectual content of it).

Here are some thoughts on feelings and effective reflection of what you've heard: (1) non-verbal communication on the speaker's part can go a long way towards helping you know what he or she is feeling; (2) non-verbal communication on your part can go a long way towards letting the speaker know you have heard him or her empathically (e.g., if the person is feeling happy, you can smile with them; if he or she is feeling hurt, looking sad reflects that feeling as well); (3) you can choose NOT to respond to a feeling if you think doing so would distract at the moment. You can always respond later or not at all. If you don't ever hear the feeling, however, you can't make that choice; (4) we are often afraid of feelings in our culture, especially "negative" feelings (anger, sadness, depression, fear) or very intense feelings. Blocking out feeling messages in a communication because you are uncomfortable with them doesn't make them go away. The fact is, the feelings are there. It is best to see them and have some behavioral choices on how to respond. Often, reflecting feelings releases the speaker from them and allows the speaker to move on to a more coherent discussion of cognitive information; (5) don't be afraid of reflecting the wrong feeling. If you're wrong, the speaker will tell you and you've learned something more about what he or she is actually feeling; (6) when reflecting feeling, go for the EXACT word that mirrors the feeling. Often, a speaker will respond, "exactly" when you've hit the nail on the head and will feel enormously relieved that someone understood; (7) finally, reflection of feeling is the single most important tool for building rapport and trust. If you do it well, you will be amazed at how open your communications become.

IV. Some Final Tips and a Look at What Results

There are three values or attitudes which underscore all active listening. These are: a desire to be non-judgmental; a desire to be genuine; and a desire to convey respect for the speaker and what the speaker is communicating. Non-judgmental communication requires an ability to paraphrase and reflect without putting a spin on your response that indicates you believe the speaker is a bad person because of what he or she is feeling or as a result of an action he or she has taken. A listener can convey judgment in many subtle ways without even realizing it, and each of these listener-communications will have a chilling effect on further communication from the speaker. Apart from overtly expressing displeasure, ignoring a feeling or action is a subtle way to show disapproval. Similarly, erroneously assuming feelings can convey judgment. For example, responding to the woman who has just left her children by saying, "You must feel guilty about deserting your children" may or may not be accurate. In fact, the woman may feel relieved or scared or any number of other things. The only way to know is to listen hard and watch carefully. Despite the importance of suspending judgment, it is equally important to be genuine about your feelings. One way to do both if you genuinely disapprove of a feeling or action on the part of the speaker is to state your own feeling without judging the other person, "Wow, this is hard for me to hear. For me, personally, staying with a child is of the utmost importance. I can see that for you, however, there's been some relief in your having left. Can you tell me more about that?" Finally, it is important to feel and to show respect for the speaker at all times. In the statement immediately above, for example, the listener has been able to separate his or her own feelings about the situation from his or her feelings about the speaker who has experienced the separation from her children. Such respect encourages the speaker to continue to trust the listener with more information.

In his famous work, On Becoming a Person, Carl Rogers states his belief that all people have a natural drive to self-actualize.[12] Put another way, we all grow towards the sun. In the counseling context, professional helpers often see individuals whose environments have thwarted that natural drive, and the individuals have not been able to reach their full potential. In that context, the role of the listener (the helping professional) is to provide the individual with a safe listening context which will allow him or her to rediscover a new path to personal growth. Rogers believes that such an environment requires an ability to convey unconditional positive regard by listening empathically and responding genuinely, the basic components of active listening.

While attorneys are not therapists, we are often in a position where it is critical that we be able to interact with others in a way that will encourage open communications and full sharing. Active listening -- the ability to hear fully what people are saying at both the cognitive and affective levels, and to convey to the speaker that he or she has been heard -- facilitates that kind of open sharing. Moreover, far from being a natural gift enjoyed by only the lucky ones who are born with it, it is a skill that can be learned and integrated into our natural way of interacting with others. Development of this skill, in turn, can have a significant impact on our ability to help our clients, to discern the truth from our opposition, and to maintain healthy private lives as well. The people with whom we come in contact with all want to be heard. Ironically, they rarely are. If you become one of the few individuals in their environment who can listen nonjudgmentally and with intensity both to the content of what they're saying and to how they're feeling about what they're saying, the results can be dramatic. You will get a richer and more complete understanding of their reality and they, in turn, will leave your presence with a sense of affirmation and hope. Mike Papantonio's recent work, In Search of Atticus Finch, raises many important questions about who we are in our profession.[13] As you hone your ability to listen well to others and to help them know that they have been heard, Atticus Finch may well be found in you.


[1] See, e.g., Robert M. Bastress & Joseph D. Harbaugh, Interviewing, Counseling, and Negotiating (1990); David A. Binder & Susan C. Price, Legal Interviewing and Counseling (1977); Robert R. Carkhuff, The Art of Helping (1969); Stephen R. Covey, The Seven Habits of Highly Effective People (1989); Allen E. Ivey & Norma B. Gluckstern, Basic Attending Skills (1974)(a participant's manual available in later editions from the authors c/o Microtraining and Multicultural Development Associates at (413) 549-2630)); Carl R. Rogers, On Becoming a Person (1961); Benjamin Sells, The Soul of the Law (1994); Thomas L. Shaffer & James R. Elkins, Legal Interviewing and Counseling in a Nutshell (1987); E. Wendy Trachte-Huber & Stephen K. Huber, Alternative Dispute Resolution (1996)(Chapter 2 on Communications Theory and Practice is especially helpful on this topic); Thomas L. Shaffer, The Practice of Law as Moral Discourse, 55 N.C. Law Rev. 231 (1979).

[2] See, e.g., Binder & Price, supra n. 1; Shaffer & Elkins, supra n. 1; Trachte-Huber & Huber, supra n. 1.

[3] Id.

[4] See, e.g., Covey, supra n. 1; Shaffer, supra n. 1.

[5] See Carkhuff, supra n. 1; Ivey & Gluckstern, supra n. 1.

[6] Binder & Price, supra n. 1, at 21.


[8] The importance of these five skills is emphasized consistently in the literature addressing the importance of active listening. See supra n. 1 and literature cited therein. For more detailed explanations of each of these skills, as well as practice materials, contact Microtraining and Multicultural Development Associates at (413) 549-2630. This Association provides training videos and self-help manuals for development of active listening and other helping skills.

[9] Ivey & Gluckstern, supra n. 1.

[10] Id. at 9.

[11] Id. at 17.

[12] Rogers, supra n. 1.

[13] Michael Papantonio, In Search of Atticus Finch (1996).


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