In an earlier post I wrote about the Golden Rules for preparing deponents and how difficult it can be for a first-time witness to remember them all at one sitting. A greater challenge is that a rule may be hard to follow. Let’s look at Rule 2 – “listen to the question.” That sounds simple enough. But it’s not.
Listening is so basic we take it for granted. But it’s a skill and a discipline and it’s difficult to do on a sustained basis. We don’t listen as well as we think we do. One management expert estimates that one in four corporate executives has a listening deficit (Ram Charan, Harvard Business Review Blog Network, June 21, 2012). Even doctors, who you would think would be great listeners, can be impatient. It is said they interrupt patients on average after only 18 seconds (Jerome Goopman, How Doctors Think).
If a witness is looking at us while we’re talking, it’s reasonable to assume they’re listening to everything we’re saying. But we don’t actually know what’s going on in their heads or how much information they’re absorbing, do we?
There have been at least eight books written on listening. There are corporate training workshops on “active listening” and “aggressive listening.” Tom Peters (management guru) gives a two hour world-wide talk on “strategic listening.” I think it’s fair to assume that we’re not as good at listening as we may believe.
Here are some common reasons for poor listening or attention deficits:
- Disinterest in the topic or the speaker
- Filtering (only listening to parts of a conversation)
- Distractions (texting in class, surfing the Web)
- Emotions (anger or anxiety)
It’s hard to listen when you’re distracted or not paying attention. We can even go blind to what lies right in front of us when we’re focused on something else. One example is described by Chabris and Simons in their book, The Invisible Gorilla. If you watch this video, count how many times the white team passes the ball:
Thousands of people have watched this video and focused so hard on counting the passes that about half of them missed something that was clearly visible for nine seconds (Yes, the gorilla). We often don’t see what we don’t focus on.
Why else might a witness not listen closely? Maybe he didn’t hear the question. Perhaps the prior series of questions confused or upset him and he wasn’t sure of his answer. When the next question came he was still thinking about the earlier questions. He wasn’t actively focused on the new question.
Or after hearing the beginning of a question he thinks he knows what the question is and stops listening to the rest of it. Or he didn’t like his answer to an earlier question and he was focusing on how he might have answered it better. Or it could be fatigue. If it’s an eight hour deposition, the witness is likely going to be very tired by the middle of the afternoon. Take a five minute break every hour. Every thirty minutes have him stand up and take a one minute stretch break.
How can we help the witness become a better listener? First, he needs to understand how easily he can be distracted. Second, you can offer the traditional advice to wait two or three seconds before answering so they have time to think about the question. Third, he should practice. Good listening is a habit and concentration is a skill. We can learn to concentrate and listen better but it takes practice. For example, try some version of this exercise. Tell the witness to repeat the question silently to himself before answering:
Q. Did you see Jon Stewart last night on The Daily Show?
A. Did I see Jon Stewart last night on The Daily Show? [Sotto voce] Yes, I did.
Q. Were you watching when Will Ferrell was on?
A. Was I watching when Will Ferrell was on? [Sotto voce] Yes, I was.
Q. Did you see the part when Ferrell told Stewart that he hadn’t been any good on The Daily Show, and that it was time for him to leave and perhaps go to law school or start a Web business or move to Mozambique?
A. What? Say that again?
I know this may be a silly example, and you will have something better, but it does force a witness to think about listening and to concentrate on the entire question, and it red flags a compound question that the witness should never attempt to answer.
Concentration and listening are skills that need exercise. Do you remember the Concentration game you played as a kid? The more you played, the better you got, right? The same applies to listening. Games and exercises and repetition can strengthen concentration and attention. Most of us can improve these mental skills, if we take the time to practice.
As Tom Peters said: “Listening is a purposeful act requiring effort and 100% attention. There’s nothing casual or automatic about it.”
Practice Tip: We see and listen selectively. While it’s good advice to tell clients to “listen to the question,” don’t expect them to always comply with the instruction without more preparation.