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Litigator’s Playbook: Active Listening: A Little Bit Goes a Long Way!

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC

When I was in graduate school we were told that as therapists we would need to develop our ability to understand what our clients were saying so that we would be able to better construct the most effective ways of working with them. When I was in law school, we were told as attorneys we would need to understand what our clients were telling us, so that we could first decide if the sum of the facts they were providing equaled a cause of action or a defense. As a therapist and then as an attorney, I needed to use those skills associated with the practice of “active listening.”

The art of “active listening” enables one to readily hear another person and understand what they are saying. To test that you had heard what was said, you can “reflect or restate” what you heard back to the person speaking. For example, if someone says to you, “I fell in the store because the floor was wet,” then you repeat back, “So you fell because the floor was wet.” Nothing more. You stop talking.

This technique conveys:
• That you were paying attention,
• That you understood what was said, and
• That you do not judge.

These three aspects of communication help you learn whether you really know what was being communicated. Too often, we allow our own interpretations or perceptions to cloud the meaning of what we were told. By reflecting back what we heard, we can see if we truly comprehended what was being said. To the speaker, having someone reflect back to them usually adds a sense of trustworthiness to the listener. We are letting them know we want to understand. Reflecting back content actually gets people to say more. They think that you are interested and they become more willing to provide more information. For a litigator, this is especially important as we construct the framework of our cases and as we are examining witnesses at deposition or at trial.

It sounds easy to do, but often we are distracted while someone is talking, we are thinking about our next question or we do not see the importance of any particular fact being conveyed. Yet, this technique of reflecting and then waiting goes a long way toward helping litigators learn more details and more depth about their own client’s story, gives us a fuller picture of what any particular witness can add, and increases the likelihood that an adverse witness will tell more than they had intended.

After you have reflected back content a few times, you can then ask questions likely to give you more information. Ask questions associated with interviewing – who, what, where and how questions – to learn more. Then go back to restating and reflecting back what was told to you. Change a detail and see whether you get a reaction. Add another point to see where it might lead.

You’ll be surprised how this seemingly easy and little skill may add to your ability to learn which cases to take, and for those cases you do take, may add to your success.

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