Mark Levison, The Levison Group
Lawyers talk for a living. Needless to say, that axiomatic observation includes trial lawyers, but it also encompasses almost any other kind of lawyer. Lawyers working on deals need to “talk out” the terms with lawyers on the other side. Attorneys representing clients with all manner of legal needs from estate planning, to immigration issues, to family law will be doing a lot of talking.
There were times during my youth when people said, “[Y]ou ought to be a lawyer.” They were plainly irritated that I was arguing with them. The stereotype of a lawyer advocate is one who is paid to be “the mouthpiece” for his client. Lost in the concept of the lawyer as an oral advocate, is the unheralded subtlety that sometimes an advocate wields more influence by being quiet.
In the litigation context, young lawyers frequently talk too much. They repeat points made, which uses up court time, and can seriously irritate a judge who is thinking about afternoon golf. A good time to be quiet, and nod, is when the judge is arguing your case for you. This can happen in chambers or open court. When the judge starts criticizing the opponent’s facts or legal theories, it’s better to let opposing counsel try to squirm out of their own fix than to interject ourselves into the colloquy. I have witnessed attorneys trying to “pile on,” only to have the court stop roasting the opponent and turn its analysis around.
It is noted that it is human nature to fill a void. Once in a while, the most effective tactic in a deposition, or interview, is to not ask a hard hitting follow-up question when the witness stops talking, but rather to simply gaze at him, or her, with an expectant look. Most people will quickly add to their answer, or volunteer unasked for, and sometimes damaging information, rather than letting the silence linger.
A very good reason to stop talking is to make sure you are listening. I don’t recall any courses on the art of listening in law school — or anywhere else for that matter — but there should be. I’ve been fortunate enough to have been elected president of several organizations. During board meetings my policy is to always stay quiet while the board members get their chance to talk. After listening to all the information offered, my practice is to distill those opinions into a concise summary and, when necessary, make a few short, timely comments, and then to have the vote. This is an effective method of prevailing on contentious issues. The fact is by sitting back and listening, an advocate gains the knowledge of the other side’s arguments and/or desires, and becomes better equipped to address those concerns or arguments. Too many times, in legal discussions, or in life’s discussions, people try to win arguments by talking over the other side. That seldom works and is always irritating — just ask my spouse. The fact is, when you are talking you can’t hear what the other side is saying, so you are guaranteed to learn nothing. If you don’t hear what the other side is saying, it is hard to win an argument, and almost impossible to influence others. As we all know, the art of listening is seldom learned early in life, and once learned, is often forgotten.
Just recently I was in a board meeting arguing for a particular person’s election. I thought what I was saying was vitally important and very well stated. During my grand elocution I saw another board member, who was backing the same candidate, run his index finger across his neck, giving me the “cut” sign. Although I felt pretty darn sure that I still had lots of important things to say, I quickly sat down. Our candidate won. Some years ago I would have kept talking.
In a case I tried last year, opposing counsel accused me of flailing around the courtroom in a “loud and demagogic fashion.” I was pleased by his irritation. Holding the attention of others in the courtroom is often critical, but one has to pick their spots. I find the older I get, the less I should talk. The trick in litigation, and in life, is to know when the best thing to say is nothing at all.
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Under Analysis is a nationally syndicated column. Mark Levison is a member of the law firm Lashly & Baer. You can reach the Levison Group in care of this paper or by e-mail at comments@levisongroup.com.
© 2013 Under Analysis L.L.C.
