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Seven Communication Habits To Avoid
Michael P. Maslanka and Theresa M. Gegen  
(My personal comments inserted in blue)

Reprinted with permission kindly granted by Michael Maslanka and the Texas Bar Journal.

The essence of good lawyering is good communication; we communicate the risks and rewards to our clients of a course of action, our clients' version of events to the fact-finder, the law to the court, and the final decision — good or bad — back to our clients. But we don't just act as conduits. How we communicate — persuasively or not, confidently or not, and positively or not — determines how effective we are as lawyers. In short, better communicators get better results. So if you find yourself engaging in one or more of the seven habits below, (and we all do, truth be told), change course!

Habit One: Phoning It In

As lawyers, we must get the pertinent facts, understand the client's true needs, and creatively solve their problems. Face-to-face communication gives us a decided advantage, whether it's picking up on body language, using a white board for the more visually minded, or forming an emotional bond. It's much easier to be evasive, or give incomplete information, over the telephone. The bottom line: good communication can't be done from the cloistered and comfortable confines of our offices.

And even with a face-to-face meeting, we often forget that it's hard to listen. Why? From an early age, we learn not to. In grade school, we look attentive, while dreaming of recess; as teenagers, we pretend to listen to our parents, while filtering out their advice. And it only gets worse, learning (as a survival mechanism) to ignore the neighbor's barking dog, the traffic, and the co-worker in the next cubicle. We kid ourselves if we think this learned response doesn't spill over into our client relationships.

The solution? Set the stage; put the phone on "do not disturb." Second, plan for enough time for client meetings. As a rule of thumb, schedule two times longer than you think a meeting should take. That way you can give your full attention to the matter at hand, without being rushed or distracted. Finally, before going into a meeting, remind yourself that the goal is to learn from others, not self-aggrandizement.

(Note: In my many experiences with lawyers, a pattern of being fact-oriented in the face of a lack of empathy is apparent. At times, referred clients said, during the interview,  that they were often displeased with the business-like demeanor of the attorney and implied dehumanization. Sympathy was often associated with the attorney's desiring the case, only to dissipate once an agreement was signed. Further, clients have sometimes been thankful that I took more time to explain the details of their situation than their attorneys.

In one case, a suicidal client was involved in a related Workers Compensation and Personal Injury event, was not receiving calls from her attorney and, most importantly, not receiving ongoing medical treatment. Calls to both attorneys remedied this.)

Habit Two: Imposing Your Story

Dr. Rick Fuentes, a jury consultant at DecisionQuest in Atlanta, says that a jury hears only five minutes of an opening statement before the jurors start filling in the story from their own backgrounds and experiences. He compares it to taking his two young sons to an action movie, and after only 10 minutes they tell him what will happen next.

Resist this impulse. If you don't, you end up imposing your story on the client's, eschew inconvenient facts, and wind up with generic solutions to non-generic problems. Couple this with a rush to judgment, which is often triggered by a desire to impress the client, and you whip up a recipe for faulty communication.

So take the time to listen as you understand these very real human tendencies. When in doubt, return to home base — it's about the client, not you.

(Note: Learning how to "Active Listen" a client is not difficult and, advantageously, enables both fact-gathering and empathy to emerge. I am willing to help the attorney learn and apply this method.) 

Habit Three: Taking The Client's Story At Face Value

While we may have navigated the rapids so far, this habit will easily sink us. Everything a client tells — and just as importantly, doesn't tell — and the order in which he or she tells it, reveals something. A client may report that her factory makes 10,000 widgets a day. There is an emotion attached to that fact, whether pride, or shame, or something else. Find it.

Remember: ambiguity in a client's story is a friend, not an enemy. Don't be frustrated by it. It is an opportunity to find out what's really happening. Let's say you're meeting with a client, you offer a solution, and the client says, "I'm not sure that's going to work." A defensive "Why not?" is a sure way to end a fruitful dialogue. Instead, take ambiguity as an invitation to probe, ask where the client sees some concerns, and request that he or she tell you more.

A corollary to this habit brings out another facet of human nature, namely, talking in conclusions. We don't even realize we do it, because conclusions are a convenient shorthand. But as a lawyer, don't assume that you understand others' shorthand or that they understand yours. Rather, lawyers must decipher imprecise words or concepts. Here are some methods to use: When a client says that "X is the case," try a simple, "What do you mean by X?" Why did you say "X is the case?"
Why do you believe "X is the case?" Is it because of "A" or because of "B"? Or ask for an example of what they are talking about.

(Note: While I emphasized the need for empathy, we should not overlook litigious motives, whether emotion or personal gain, and the need for empirically-based fact. In one enlightening experience I was told by a colleague that, in his final therapy session with an attorney-referred client, he was told that the entire claim was fraudulent as he thanked the psychologist for his assistance, protected by confidentiality. In a personal experience, an attorney and I were stunned by a client's lie discovered as we waited in the hall prior to a trial. Subsequent to these experiences, I became even more sensitive to response bias and secondary gain, taking steps to minimize such risks.

Some attorneys refer clients before deciding to take a case for a screening evaluation. This is a cost-efficient approach.)

Habit Four: Thinking It's Only About The Facts

The psychologist Dr. Abraham Maslow described a person's hierarchy of needs. Clients need to be acknowledged, emotionally heard (that is, empathized with), and respected. Visualize the hierarchy as a triangle with these needs at the apex. Starting and ending with a technical solution, which forms the triangle base, without considering the apex needs, can be disastrous. Here are some examples:

	In our first meeting with the CEO of a new client, he said at the outset that "all lawyers were leeches, interested only in padding their pockets, and really not much better than the [suing] employee trying to shake me down." Our reaction? Rather than getting defensive or arguing with him, we acknowledged his feelings. He was heard, and empathized with, and the meeting, once we got down to the technical issues, went well.
	When upset clients need to be calmed, a good rule of thumb is, "monkey see, monkey do." Calmly reflecting back to the client what he is saying, "What I hear you saying is [XYZ]. Are we right or is there something we're missing?" is an effective approach. Again, it acknowledges the client's concerns and opens the dialogue.
	Just because a client isn't hollering, doesn't mean he or she is not emotional. With one client, we spent a long time developing three options on an employee termination issue. We favored the least risky, and the client seemed to agree. While going over the details, however, he leaned back, crossed his arms, and looked quizzical. Swallowing our pride and taking a chance, we asked, "Even though you tell us you are satisfied with this solution, we're getting the feeling that you're not quite sold on it. Are we off base?" This gave the client permission to open up, he told us he wasn't happy with the solution and why, and we changed course. He was respected.

Habit Five: Forgetting the Client's Context

Clients don't operate in a vacuum. Whether representing individuals, or corporate America, everyone deals with dynamics beyond the law. Here is a short example: The client wanted to fire an employee because it believed he had inappropriately handled the reporting of a safety violation. Not taking what the client said at face value, it was clear that more people were really accountable than that one employee. Part of the challenge was a very human one: the decision maker was a vice president over the entire area, and, like anyone else, there were employees he liked (the ones he didn't want to punish), and those he was neutral about or didn't like (including the one who was to be punished). Ideal conditions for a wrongful termination lawsuit. So what did we do? A couple of things:

It would have been easy, and disastrous, to be forthright about what we thought. Instead, to drain the meeting of unproductive emotion, we went to a grease board, diagrammed the chain of command and the facts, and focused on something neutral — the facts on the board — as opposed to feelings.

If you'll forgive us a rhyme, we framed without blame. Once we went through the facts, we said, "We don't know exactly how to say this, so we hope you'll help us, but we've noticed there may be some other people who should be held accountable." While initially upset, the client came to a better-reasoned and more defensible decision. And speaking of a client's context, remember that the best communicators are those who provide a positive context, helping to see a half-full glass. Try some of these: Talk about "meeting challenges," not "dealing with problems." Instead of saying "yes, but" to an idea, use a connector to build on what the client says: "yes, and." Remind the client that often a challenge, as with the accountability example, is "inexpensive" tuition compared to what could have occurred, and point out the lesson learned and how it can be put to use in the future.

Habit Six: Failing To Have A POV

What's a POV? A point of view. As former Texas Agriculture Commissioner Jim Hightower said, "The only things in the middle of the road are yellow stripes and dead armadillos." A POV is not the same as imposing a solution on the client. Rather, it is communicating opinions without blurring the roles of counselor and client.

Some lawyers fear expressing a POV. They think the client will be upset, or the senior lawyer will see them as upstarts, or think that their opinion is of no consequence. At our firm, we tell new lawyers that it's part of their job to speak up, and we use this analogy: Planes often crash because a copilot, rather than speaking up about the blinking red light on the console, thinks, "The pilot has done this for 30 years, he must know what's going on, so I'll just sit tight."

By being afraid of looking foolish, or of saying something less than perfect, or of admitting ignorance, a lawyer violates the basic home rule mentioned earlier — we've made it about us, not them.

Habit Seven: Closing Off

Ineffective communicators are closed off to others. Here are two examples: In the first, the lawyer lived by the motto "My way or the highway." He refused to acknowledge a basic truth: People have different styles of communicating. Not good or bad, just different. Some insist on getting right to the point and then moving on, some need extensive details and are uncomfortable plunging right in, and some rely on their feelings and intuition. For this lawyer, communicating was only effective and comfortable when he happened to be working with people who shared his communication style. Unfortunately, the majority of people didn't. So, he was missing out on important information and potential clients.

(Note: I have been requested by lawyers to meet with a client just to screen their mental status and communication prior to the lawyer's acceptance of the case. These referrals were appropriate as the lawyers reached their own opinions, but wanted confirmation. In one instance, a client was only referred to me after he threatened the lawyer's life. The attorney's shortcoming was that the client had been asking for help and he frustrated him further by "not hearing" the seriousness behind the requests.)

By contrast, learn from this example — an attorney was constantly frustrated by his contact person for a large client, who would call, ask a question, and want a quick "yes" or "no." This was a serious source of consternation — the attorney felt the client was irrational and unfair, and the client was unsatisfied and anxious. The attorney, however, decided to attend a seminar about communication styles, and learned that his style was detail-oriented, while the contact persons was, as they say in the Army, BLUF — Bottom Line Up Front. Once the attorney understood this, he used techniques he picked up in the seminar to give counsel based on the client's style, not his. And you know what? The client was more satisfied, the attorney less upset, and they now enjoy, not dread, talking. Note: He didn't try to change his basic nature, just his approach.

Conclusion

At the end of our careers, there will still be more to learn about effective communication. Avoiding the seven habits isn't so much a destination as a process. For some help along the way, visit www.birkman.com, and read "Now, Discover Your Strengths" by Marcus Buckingham (which includes a Web-based questionnaire for determining your strengths) for information on different communication styles. Confused on how to communicate across various styles? Pick up a copy of "I Hate Selling Book" by Allen Boress, and David Maister's "The Trusted Advisor." Henry Beckwith's books, "Selling the Invisible" and "The Invisible Touch" are also invaluable.

Finally, good communication is based on authenticity. You can't take another person's style and make it your own. Before the decisive battle of Midway, Admiral "Bull" Halsey was knocked out of commission by illness. Ray Spruance, his replacement, went to the hospital, asking him for advice. Halsey's blunt counsel: "When you're out there, don't play it the way you think I'd play it; play it the way you think it should be played." Now that's communication, and, by the way, still good advice more than half a century later.

(Note: Adding one bad habit to the seven above, not returning client phone calls after s/he has expressed frustration communicated to the attorney can lead to the suggestion that a client might want to consider another firm. One firm handled this problem congenially and cost-effectively: secretaries or paralegals returned calls, sometimes to assuage client concerns, assess call priority, or pass it on to an attorney if needed. At other times, during case lulls, they called clients just to "touch bases" and assure them that their case was still in process and ask how they were doing.)