Being able to listen is an important trait in our profession. We need to hear what our clients recite as "their story" and develop a plan around that story for resolving their dispute or obtaining compensation for the wrong done to them. From the day we first meet our clients, we must open our ears to their plight; a tragic injury, a loss of a loved one, a business or investment that has been stymied by wrongdoers. Whatever the matter, it is important that we understand what happened, how it happened, and what relief is available to bring the clients back to where they were before.
Listening is an important part of negotiations. We must listen to our opposition to understand the other side’s views as to the facts or story of the case. Without a clear understanding of their position, we cannot fashion responses, nor put together a plan for representing our clients. What is their story? Who are the story tellers in the “theater of the real” (i.e. the trial court)? How will the sides be viewed by the trier of fact – court or jury? How will the story tellers be perceived? Will the trier of fact hear our story or theirs? Thus, we have to anticipate these questions and answers to the questions in planning the case and managing it for our client.
I often talk about the “laser beam to resolution,” i.e. the shortest line to a fair ending of the dispute in obtaining rightful compensation for our clients. That first test of this plan is in direct negotiations. Generally, I try to engage the other side in an early dialogue about the case, but at that point I am trying to listen to their story. I need to hear their version as soon as I can. I don’t just rely on the pleadings or discovery. I want to hear it from them or their counsel.
If direct negotiations don’t work, then mediation is next. By that time I may have listened to witnesses in deposition, or heard the oral argument of counsel at a motion or listened to counsel during a deposition with objections that may reveal the other side’s thinking. All along the way I am listening to what is being said by those participating, including the judge’s comments at case management conferences or hearings.
A mediation provides another opportunity to listen and hear – this time from a neutral whose views are important because they should provide an objective assessment of the stories being told by the parties in their briefs and sessions with the mediator. But it is important to the process for you as counsel for your client to listen and hear what is being said. Then, you need to discuss what has been heard with your clients and, again, listen to how they respond. Are they rational? Do they understand the issues? Are the responses purely emotional? Do they understand the litigation process and how they can lose as well as prevail? What is a “win” in their minds? How does that track with a realistic appraisal of the case and the probable results? Do they understand the value of the opportunity, logic and rationality of resolution by mediation, and how that process can work for them?
All of this requires you, as counsel for your client, to be a good listener, and to hear what is being said. Then you must translate that into a dialogue with your clients, and a mediator if that is the process you are involved in, so that a course can be fashioned which leads to a positive resolution of your clients’ case.
Listening, hearing – important qualities of counsel in providing high quality representation for your clients in the dispute resolution process!
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