I do not think I am going out on a limb too much when I say that most lawyers like the sound of their own voices. Indeed, many people enter the legal profession since they enjoy arguing, making points on behalf of others, and other forms of verbal advocacy. Unfortunately, it is true that sometimes the person who speaks the most in a given setting often has the best chance to obtain an advantageous outcome for their client. However, when speaking with adversaries, lawyers would often be best served if they listened more rather than made additional points, since this can make an adversary feel heard and provide a lawyer with information they might not have learned if they had spent more time speaking.
I recently had an interesting interaction with an adversary. We were going back and forth about the positions of clients, and I let my adversary say his piece and give his client’s side of the story. I then began to provide my client’s points about a given issue. I expected that I would be interrupted as I moved from point to point on behalf of a client, as this had been my experience when interacting with adversaries.
However, my adversary just let me speak. Only after it was clear that I had said everything that I wanted to say did my adversary finally jump in and provide some counterpoints to the arguments I had just conveyed. I actually thanked my adversary for not jumping in earlier and letting me get out all of the points I wanted to make before countering with his own opinions.
When I was able to fully express my side of the story without interruptions, I felt like I was able to say my piece without being attacked with interruptions from my adversary. This made it easier not to be defensive, and made it more likely that I would want to pursue collaborative solutions to the problem rather than take a zero-sum position on the matter. Moreover, listening more leads to much more civil discourse and can ensure that everyone has the full chance to convey their points, which is important when having discussions between adversaries.
Recently, I have tried to be much more deliberate in listening (rather than speaking) to adversaries, and it has yielded a number of positive outcomes. Last year, I was trying to settle a case after a few years of pretty intense litigation. The parties were relatively entrenched in their positions, but the lawyers were on relatively good speaking terms. At some point, my adversary and I began doing the back and forth that is pretty commonplace during settlement negotiations during which one party calls the other with a settlement demand, and the other counters and so forth.
During this entire time, I just resolved to let my adversary speak without interruptions during each of our exchanges. This was not easy since it is natural for a litigator to want to be an advocate and jump in when he thinks that an adversary has it wrong. The outcome was positive. I think my adversary enjoyed speaking his mind without having to be defensive about matters. Moreover, I bet my adversary felt heard, and knowing that another has empathy for a person can go a long way toward forging a connection between adversaries and in other contexts. We were eventually able to settle the matter on favorable terms for my client, and I am willing to bet that my approach of letting my adversary speak more was partially the reason.
I wish lawyers could listen rather than speak in other parts of the legal profession to positive effect, but this is often not the case. During oral arguments before a court, the party that speaks the most is often the party that wins a matter. This is because a judge is naturally going to give more consideration to the points of someone who has had more airtime in a given proceeding than the lawyer who has not had the chance to convey as much. This is a real shame since the party who speaks the most does not always have the best case. Although combative oral arguments can be persuasive to a court, they are not necessarily the best decider of who has the best position, and it would be great if this aspect of legal practice could be reformed as well.
In any event, when speaking to adversaries in private, lawyers might consider letting their adversary speak more than piping in with their own positions. This can help an adversary feel less defensive and listening more can uncover valuable information that can be useful to serving clients.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at firstname.lastname@example.org.