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Wisberg, M; Peters, J K --- "Experiments in listening" [2008] LegEdDig 41; (2008) 16(3) Legal Education Digest 41


Experiments in listening

M Wisberg & J K Peters

57 J Legal Educ 3, 2007, pp 427–447

Critical listening. An integral part of critical thinking. An essential component of academic life. What we expect from ourselves, and what we hope to encourage in our students. Bred in our bones.Yet it’s not the only form of listening. And it may not always be the most useful form. Consistently listening with our critical mind can be bad for the listener, possibly worse for the one to whom we’re listening. If we’re too busy formulating our responses, we may miss what our interlocutor is saying. And we may put our interlocutor on the defensive. Worse, feeling judged, she may shut down entirely, become dispirited, learn nothing. That’s certainly not what we want for our students, nor is it what we want for ourselves.

If the quality of our listening can affect how and what our students learn and can affect our interpersonal relationships, including those with our colleagues, as teachers and clinicians, we can benefit from exploring how we listen in our academic and professional lives. This is especially true because we spend so much of our academic, professional, and personal lives listening or being listened to.

How do we listen in our classrooms and with our colleagues? In those contexts, are we consistently judgemental, always in our critic mind? Does that cause some of our students, even some of our colleagues, to shut down, to be unable to learn effectively? Experiencing us as judgemental, will our students adopt that model, and if so, will it make them less effective lawyers? If we’re not always listening in our critic mind, how else do we listen, and how does that affect our students and colleagues? More generally, what is the relationship between how we listen or are listened to and how we and others learn?

One helpful way to examine one’s listening employs a doubting and believing spectrum derived from an essay by Peter Elbow. Elbow proposes that ‘we can improve our understanding of careful thinking or reasoned inquiry (and therefore improve our practice) if we see it as involving two central ingredients: what I am calling methodological doubt and methodological belief.’

Elbow suggests, rightly, that academic culture is a primarily doubting culture. We pride ourselves on our ability to criticise an argument, and we want our students to develop that skill.

Elbow argues that with our intellectual roots located in Socratic argument and Cartesian scepticism, it’s not surprising that we understand careful thinking as equivalent to critical thinking, that we privilege challenging a claim over ‘the ability to enter into it and temporarily assent.’

Ironically, as this passage indicates, rather than helping us develop our thinking, doubting often ‘caters too comfortably to our natural impulse to protect and retain the views we already hold.’ We know this from debates; how often does a debate or ferocious argument lead to new insights or lead anyone to change their mind?

Yet we need new insights, want to be open to differing perspectives, and think that becoming educated means making up and changing our minds. For that, Elbow argues, we also need methodological belief: ‘the systematic, disciplined, and conscious attempt to believe everything, no matter how unlikely or repellent it might seem — to find virtues or strengths we might otherwise miss.’ It is a process in which ‘we are not trying to construct or defend an argument but rather to transmit an experience, enlarge a vision.’ Methodological belief ‘forc[es] us genuinely to enter into unfamiliar or threatening ideas instead of just arguing against them without experiencing them or feeling their force. It thus carries us further in our developmental journey away from mere credulity.’ Rather than encourage us to accept unquestioningly, to embrace false beliefs, believing helps us examine our beliefs and, consequently, become better able to assess what knowledge is trustworthy.

This experiment in listening proposes to adopt Elbow’s poles of methodological doubt and methodological belief as a spectrum that we call the doubting/believing spectrum. The spectrum works on two levels. One is as an analytical tool through which you can examine a critical incident of listening. For example, if, in looking at an experience of listening, you found that you listened with Elbow’s components of methodological belief, ‘the disciplined procedure of not just listening but actually trying to believe any view or hypothesis that a participant seriously wants to advance,’ you would situate yourself at the believing end of the spectrum. Looking retrospectively, a reflective listener would decide he was at or near pure belief when he concludes that, when he listened, he tended to take everything related by the speaker as true and, without challenging the speaker, sincerely tried to pursue the conversation as if everything were completely true.

On the other end of the spectrum, a reflective listener looking at a critical incident of listening would conclude that she listened with pure doubt if she questioned every statement, every assumption, every inference, and every implication of the speaker’s words. If we conclude after looking at a previous incident of listening that we did so solely intending to refute, to reconstruct, and to contradict, we will have found ourselves on the side of pure doubt.

Some reflective teachers may find it useful to start developing habits for regularly collecting new data about their listening. Initially, it can be challenging to figure out how to observe a behaviour like listening, which we do constantly, and often unconsciously.

How each of us collects data should connect to long established daily habits. Those who keep daily calendars may wish to jot notes there; those who use Palms and other PDAs might wish to add notes to calendar items for meetings. Those who regularly journal could write notes in diaries. One could carry around a memo pad for this purpose. A portable Dictaphone might be helpful for those who prefer to record their observations orally.

Here is one example of an insight in listening practice and the changes that resulted from a planned observation of one’s listening patterns. Early in writing this article, Jean Koh Peters observed her listening over a week and had one major insight. She found that when listening to stories, descriptions of events, or other presentations of ideas, she often experienced a ‘listening gap’ after about two or three minutes. The gap began when something her interlocutor said sparked an idea or reminded her of something, and her mind would follow that idea for about thirty seconds to a minute, until she realised that she had lost the speaker’s thread. When she returned to listening, she was concerned that she had missed key data or concerns and found herself trying to reconstruct what she had missed without having to ask the speaker to repeat it. This reconstruction effort detracted from her renewed listening.

After noticing this trend, Peters decided to change three things about her listening. First, as a conversation begins, she often informs students, colleagues, and other frequent interlocutors with whom she works closely about the gap and asks them to be patient with her and to understand that her requests to repeat what they have just said has to do with her lapse, and not the clarity of their speech. Second, she tries conscious ways to stay listening, paying specific attention at the two or three minute mark, keeping eye contact with her interlocutors, avoiding other distractions (turning away from the computer, turning off the phone’s ringer, or removing papers relating to other concerns from her desk during the meeting). Third, with people with whom she does not regularly work, she has developed a habit of asking for the repetition and apologising for the gap, rather than trying to hide the lapse.

Prospectively, you can make doubting and believing into a game, a serious game, in which the two extreme positions become methodological: ‘artificial, systematic, and disciplined uses of the mind.’ After looking at critical incidents of his doubting and believing, a reflective teacher may wish to play some version of this game. If a teacher concludes that he has been overly skeptical or tends in certain contexts to be more doubting than he wishes, or that his students regularly respond to each other skeptically as doubters, the teacher can consciously experiment with the believing game: taking to be true everything that he and the class hears from someone proposing a thesis or an interpretation and encouraging the ideas that students propose to be expanded and taken to their logical conclusions. Similarly, the teacher can expand the believing game to encompass everything said during a discussion. By contrast, a teacher who decides that she and/or her class have been overly supportive if ideas that needed stricter scrutiny can decide to play the doubting game with ideas she feels have been insufficiently probed.

The key to applying prospectively the doubting and believing spectrum is making conscious choices about how to listen. You can make these choices in a classroom for (or with) students, and you can make them in any conversation at any time, based on the speaker’s needs at that time. For instance, imagine at a faculty seminar asking a person presenting a paper whether she would like her audience to listen to her in a doubting or believing spirit. How would each of those strategies affect the texture and dynamic of the discussion? We know that early in her writing process, a writer may decide she needs the nurture and comfort of a creative, brainstorming, and hence believing, audience. However, near the end of that process, when a writer is closer to submitting her piece for publication, she may decide she wants it scrutinised by a rigorously strict and skeptical doubting crowd. That diverse set of needs also might be true for students trying to work out their position on an issue or solve a perplexing problem. That suggests that in working with or responding to writers or thinkers, we have to be active at both ends of the doubting/believing spectrum. Consequently, to help us become more flexible in adjusting to what our students and interlocutors might need, it would be useful for us to reflect on whether our conversations at work typically tend to land us on one end of the spectrum and then to experiment with conversations that work from the opposite end.

While Elbow thinks academic life is heavily focused on doubting and consequently emphasises how much we need believing, he also stresses that to be complete thinkers and writers, for our thinking to be trustworthy, we need both doubting and believing. He recommends that we aim for balance between them. He stresses that we should understand doubting and believing as processes that are ‘methodological: artificial, systematic, and disciplined uses of the mind. As methods they help us see what we would miss if we only used our minds naturally or spontaneously.’

The doubting and believing spectrum can be useful to listening in a clinical legal context, when new law students and supervisors discuss approaches to client interviewing. For example, early in a clinical experience, when law students may have very little experience with clients, they often look for advice about how to conduct their early interviews. One piece of advice Peters regularly offers her students is to initially approach their clients in a believing mode. Initial interviews alternate between gathering facts and building rapport; playing the believing game allows a new lawyer to establish rapport, to take seriously her client’s felt and presented views, and before asking critical or clarifying questions to hear and understand as a whole a client’s story and his perspective as he has seen fit to present it.

However, as their relationship progresses, it would be inappropriate for a lawyer to maintain a purely believing mode in her listening. As she begins to amass extrinsic evidence, which may contradict or make her sceptical about her client’s position, the lawyer and her client must collaborate, and the client must be confronted with concerns about his case. In addition, the client must be prepared for sceptical adversaries, sceptical fact-finders and decision makers, and the range of doubt they will encounter throughout. In fact, we would expect that a lawyer who failed to make her client aware of the doubting to come would have neglected an important dimension of her job.

Consequently, as a clinical teacher, Peters suggests to her students that, as they listen to their client and prepare for the presentation of her case, they regularly think about the balance between doubting and believing that they have exercised in their interactions with that client and, at any point in any interview, decide consciously where they want to situate themselves on the doubting and believing spectrum. If a student or lawyer also has looked at critical incidents from his past, he may conclude that as a default, he feels more comfortable when he has situated his listening at particular places on the doubting and believing spectrum. This will remind him to make sure that he spends time with the client on the parts of the spectrum that do not necessarily come naturally to him.

Lineups encourage people to commit to a position and to do it with their bodies. They’re particularly effective when working with a controversial topic, say, a story that raises questions about a lawyer’s professionalism, or a case like Palsgraf with good arguments on either side, or with any question or problem on which opinions or experiences are likely to differ across a broad spectrum. They can be used on their own, at the beginning or end of a discussion, but Mark Weisberg has found them even more useful when combined with a ‘three minutes each way’ discussion.

What makes lineups educationally useful? Just having people move and express their commitment physically can be a powerful experience, and for most people it’s fun. Like writing, physically expressing an opinion commits you to it more strongly than simply thinking it; when people are committed to a position, they’re much more likely to be engaged when they discuss it.

Seeing how people disperse themselves on a line can be intriguing, and then being asked to listen actively to someone who’s located herself at a different place from you can open your mind to a differing perspective. You might even change your mind.

We probably all agree that listening is an exceptionally important skill for teachers and students, but we think most of us and most of our students don’t practice it very often. When someone else is talking, we either tune out or are so busy formulating our own responses to what she’s saying that we don’t listen to her. Our heads are too full of noise to be able to hear. By providing a structure, the three minutes each way strategy encourages us to listen carefully and actively to our conversational partners, and the experience of doing so may prompt us to transform how we listen and even how we think.

Instead of intervening with advice, which can suggest to an interlocutor that you doubt their capabilities, what if you were to follow Mary Rose O’Reilley’s suggestion and simply listen, deeply and open-heartedly. Perhaps that would be more helpful to our interlocutor, or when we are similarly situated, to ourselves. When we withhold our advice until we’re asked and simply remain present to our friend, student, or colleague, we’re modelling for her our confidence that she has what she needs to solve her problem herself. In some circumstances, that can be a greater gift than our most thoughtful reflections on her problem.

Listening without expressing, or perhaps even feeling, judgement may offer fresh insight as well. Two experiments from legal practice literature may be helpful: ‘Active Listening — “Non-Judgemental Acceptance”’.

One widely used text on client interviewing and counselling suggests ‘active listening’ techniques. When a client speaks, the actively listening lawyer is advised to reply by reflecting the ‘essence of the content of the client’s remarks, as well as your perception, based both on the statement and on the client’s non-verbal cues, of the client’s feelings. You distill the information and emotion from the client’s statement, and then convey back what you have heard and understood — hence the term, “active listening.”’

Binder, Bergman, and Price focus the lawyer on listening techniques that withhold judgement and reflect back the client’s viewpoint. Teachers seeking active ways of encouraging students to speak freely can adopt a similar strategy.

In partnership with Sue Bryant of City University of New York Law School, Peters proposed a habit of ‘parallel-universe’ thinking for cross-cultural competence in lawyering. The habit is simple: when confronting any new story, where few facts are known, brainstorm multiple explanations for the facts available. Thus, a teacher confronted with a student who has not delivered a paper as promised would imagine numerous parallel universes that might explain such lateness: a misunderstanding about the deadline, a computer problem, a family emergency, the completed paper delivered to the wrong office. The goal of parallel-universe thinking is not to brainstorm until the right answer is discovered, but rather to become aware of the vastness of the teacher’s lack of data and knowledge and to become open to the multiplicity of possible explanations involved. Parallel universe thinking offers the listener an option to prejudgement and invites listening without judgement — listening to understand, rather than evaluate.

This listener uses a wide repertoire of skills and makes subtle, sophisticated choices about listening in each new context. At any moment, this listener is also conscious of distractions and obstacles and strategises to eliminate impediments to optimal listening. Over time, with mindful attention to our processes, we can expand this repertoire and refine our listening.

What’s most important to us is that you find strategies that work for you and help you explore your listening. There is something endlessly fascinating and challenging about this daily activity, and the reflective teacher may return to look at her listening practices fruitfully many times over a career. We encourage you to develop your own exercises, prompts, and analytical frameworks for a steady practice of exploring your listening through the years.


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