Listening: The Art of Advocacy

"Whatever success I have had in life," he told an attentive Gertrude, "I owe to having been willing to accept information from any source. It only meant a little trouble, being nice to people, and polite when they came to me with news, and rewarding them for it when it was worth having. The government offices won't accept information except from official sources. I know hundreds of people in the Far East who could give them the most valuable information, but they won't take it." 1

"Communication cannot be a monologue in which only the sender is at work. To be effective, both parties, the teller and the receiver..., must be actively involved....

Therefore, good communication means a dialogue between you and your receiver; a dialogue made up of telling and listening." 2

Listening is not only an attempt to hear, it is also processing feedback.

Thus, we listen with our ears and our eyes; we listen by being aware, focusing on all that is around us. When should we listen? When we meet our client; when we review the opponent's discovery; when we observe the judge react to various motions. At depositions we listen not only to the spoken answers, but we watch the deponent. How do they speak? What is their body language? Are they bold or afraid, sure of themselves or meek? Always we concentrate.

On the way to Court we listen in the elevator, in the restroom, in the court room. Aware of those around us, we collect information. During the trial, we listen to the witnesses, to the Judge, and to the jury. We process what we hear, we adjust our case to address what we have heard.

Historically, lawyers are the mouthpiece, the talker. We are the sender of the message, the Judge and jury are the receiver, the listener. To be an effective mouthpiece, we must be the listener. How else will we know what to say, much less how to say it?

Gerry Spence wrote:

"If I were required to choose the single essential skill from the many that make up the art of argument, it would be the ability to listen. I know lawyers who have never successfully cross-examined a witness, who have never understood where the judge was coming from, who can never ascertain what those around them are plainly saying to them. I know lawyers who can never understand the weakness of their opponent's case or the fears of the prosecutor; who, at last, can never understand the issues before them because they have never learned to listen. Listening is the ability to hear what people are saying, or not saying as distinguished from the words they enunciate." 3

PRETRIAL LISTENING

Your client: When the client first tells you their story, leave your pen in your pocket. Listen, probe, ask questions. Let them tell their problem uninterrupted, then interrogate, drawing information from them. Only when you feel you have a solid grasp of the information do you record or take notes. As you write, ask questions, get the correct information.

Why don't you write initially? First, by taking notes, you are not giving your full concentration; you won't hear it all. Second, the client's story telling will lose its rhythm, continuity, while they wait on your note taking. Information will be forgotten; it will be given out of sequence. Third, "(Y)our potential client feels that you are involved in the case because you have listened carefully and allowed him to tell it his way." 4

Each time we talk with our client; probe, question and listen. Expand your base of understanding.

Your opponent: Not only must we know the defendant, but you must know the defendant's attorney. What does the attorney emphasize, how serious do they take our case, what is the real defense. You learn by studying discovery requests and answers, by the way they ask questions in deposition, by the motions they file. But, maybe most important of all, we learn from casual conversation.

In depositions we listen not only to the other party's words, but how they answer. Their voice, their eyes, their body language. Depositions are the time to not only find out what the person knows, but to evaluate their credibility and whether a jury will like them.

The Judge: It's important to know, not only whether the Judge likes our case, but why. What is it that the Judge does not like? With this information, we can restructure our theme, our evidence, our emphasis. We learn the Judge's bias by listening to the questions and the comments about the parties or the case in chambers, on the phone, or socially. What does the Judge emphasize or question in his written opinions.

TRIAL

Voir Dire: Listening in voir dire begins long before the bailiff says, "all rise for his Honor." If we investigate the jury panel, how do others speak of the prospective juror, what is their environment, their job duties. At trial, watch them come in the courtroom. Who is a loner; who makes friends; who talks, jokes. What do they read. Do they read or converse; who crochets. How do they carry themselves. Who smokes, who is preoccupied. Are they calm or nervous, bored or attentive. What do they bring with them - newspaper, book, totebag. Who's handicapped, overweight. How do they dress - neat or sloppy, clothes match, suit or casual. Are the clothes flamboyant or conservative, expensive or Wal-Mart, jewelry, shoes polished.

When they talk to each other, do they pay attention.

As you question prospective jurors, maintain eye contact, listen, pay attention, follow up with a logical response or question. Only after the juror stops talking, do you make notes, think about the next question. Concentrate on your dialogue with the juror. Listen not only to what they say, but how they say it. Equally important listen for what is not said.

In establishing rapport with jurors, Larry Smith feels you should use their words, imitate their body movements, copy their voice levels and patterns. We simultaneously assess information at the vocal, visual and nonverbal levels. Smith says, "We, as trial lawyers, assess the information that is available to discover if, in addition to communicating with the juror's conscious mind, we are reaching his unconscious mind through the kinesthetic, visual and auditory channels."5

Remember, "(T)here are enormous pressures upon the venire to give socially acceptable answers, irrespective of the true subjective beliefs of the responders." 6It's not what they say, its how they say it, their body language, what they leave out. Do they look you in the eye as they answer your question?

Questions such as, "How do you feel about..." and "Why do you feel that way," give the juror an opportunity to express themselves. These type questions make it easier to understand the juror.

DIRECT EXAMINATION

At no time in the trial is listening any more important than when questioning a witness - direct or cross. If we don't concentrate on the answers, we'll never know what answer has been given. We'll never know the jury's perception of the answer.

We can't worry about the next question until the complete answer has been given in an understandable form. As Sonya Hamlin writes, "It is very hard for any human being to listen to answers, while, at the same time, thinking ahead to the next question and thinking of the consequences of what has just taken place."7

This leads to the use of notes. Do you write out questions. Do you list areas to cover - a check list. Or do you do as Herbert Stein suggests, write out the answers and ask questions using the answer. Regardless of the method, we must know where we want to go; the information the jury needs in order to decide in our favor, why that information is important to them, and the information to legally prove our case.

Sonya Hamlin makes several points on using notes. First, "See your notes as flexible, mobile, so that if you really are listening to the answers of the witnesses, you will still be able to get to these key stops, although they may need to be rearranged somewhat, depending upon what the witness has just said."8 Second, jurors know you've prepared a plan so they will give you permission to refer to your notes after the answer. "If you surreptitiously try to peek down at your notes while the answer is being given, you will give the jury the impression of either rudeness or anxiety, because they see you trying to plan ahead, worrying about where to go next."9 And third, you will appear relaxed and in total control if you listen, then deliberately refer to your notes, look up, and then form your next question.

Sometimes we "loop" our questions. Looping is using the answer in the next question.

For example,

"What direction were you driving?"

"West."

"As you were driving west, did you see the red car?"

"Yes."

"What direction was the red car going?"

If we don't listen, we can't use "looping" questions.

During direct examination we must listen with our eyes too. We watch our witness, the jury, the judge, and opposing counsel. What does opposing counsel think is important. When does the opposing counsel take notes. What impression is the witness giving? How is the jury reacting to our witness? Are they listening or bored? Are they taking notes? In a recent trial, I knew a point had been made when an expert testified to his outrageous fee and a juror turned to the juror behind her and said loud enough to be heard, "can you believe that?" By noting the juror's reception, we can alter our proof if necessary.

CROSS-EXAMINATION

In Cross Examination: Science & Techniques, the authors list 8 steps for impeachment by using inconsistent statements. The 8th step is to listen to the direct examination.10

Concentrate, focus, total attention! When the opponent's witnesses testify, there must be no interruptions. No conferring with co-counsel or client, minimum note taking, no dozing. We listen for inconsistencies, for impeachable material, for weaknesses in the witnesses observations. Although we have prepared a cross-examination, we must be ready to modify our plans, to add new areas, to delete others.

Again we study the perception the witness is giving the jury. Are they interested or bored. Has the jury learned something that is valuable to their decision making. Only by total concentration will we be ready to take advantage of a witness's mistake, or inquire into unanticipated areas.

When we ask, besides listening to the answers, we must observe the jury's reaction to our questioning and the witness's answer. What does our body language and facial expressions convey to the jury? What does the witness's body language and facial expressions convey to the jury? We need this information.

By listening we know whether to begin with the prepared cross or answer the direct examination first. We must be aware of the rules of primacy and recency.

EXPERT WITNESS

Has the expert testified as anticipated. Did they use the correct wording - "probability" v. "possibility." Were the Daubert factors covered. The right questions are asked, but did the answer qualify the expert to express an opinion. Is the jury understanding the testimony; are they interested. If not, how do we make it interesting.

"Try to hear the testimony of the expert with the jury's ears. Stop him whenever the words get too big, when the concepts get too involved or when he's gone into too great detail too soon. Go back over certain points that would be unclear if you were a juror listening for the first time."11

Be ready to interrupt if the expert gets off track.

We all know the questions, but the jury doesn't decide the case on questions. Verdicts are based upon answers. We must be sure the answer is given.

Without listening to the opposing expert, how will we know if we've been given cross examination fodder. Was the opinion based on erroneous facts. Did the expert bolster their opinion beyond scientific limits. Prepare and concentrate.

CONCLUSION

Listening is not easy. It's not natural for trial lawyers. We must learn to listen if we are to be successful. Listening develops knowledge. Knowledge grants power. With power we win.

  1. Wallach, Janet, Desert queen: the extraordinary life of Gertrude Bell: adventurer, adviser to kings, ally of Lawrence of Arabia (1995), p. 79 Back to Text
  2. Hamlin, Sonya, What Makes Juries Listen, Prentice Hall Law & Business (1985), p. 17 Back to Text
  3. Spence, Gerry, How to Argue and Win Every Time, St. Martin's Press (1995), p. 67 Back to Text
  4. Russ M. Herman, Courtroom Persuasion: Winning with Art, Drama and Science, ATLA Press and Clark, Boardmen Callaghan (1997), p. 12 Back to Text
  5. Smith, Lawrence, Jr. and Malandro, Loretta, Courtroom Communication Strategies, Kluwer Law Book Publishers, Inc. (1985), p. 550, section 6.17 Back to Text
  6. Stern, Herbert J., Trying Cases To Win, Vol. 1, Wiley Law Publications (1991), p. 485 Back to Text
  7. Hamlin, p. 187 Back to Text
  8. Hamlin, p. 213 Back to Text
  9. Hamlin, p. 213 Back to Text
  10. Larry S. Poxner and Roger J. Dodd, Cross Examinations: Science & Techniques, Michie (1993), p. 349 Back to Text
  11. Hamlin, p. 301 Back to Text