Embrace Your Softer Side

Using ‘soft skills’ to help newly licensed lawyers become better writers—and better lawyers

COLUMN > Write to Counsel

MIREILLE BUTLER

“Emotional intelligence is one of the most important, yet overlooked, areas of law practice. It is a gift for lawyers and legal educators alike.”
Daniel S. Bowling, III, Senior Lecturing Fellow, Duke Law School

We lawyers pride ourselves on our analytical skills, our logical thought process, our ability to understand and argue “both sides.” Yet those critical skills we apply dispassionately to a variety of legal issues fail us when it comes to perceiving, using, understanding, and managing emotions. Indeed, as a profession, we score on the lower side of emotional intelligence.¹1 “How emotional intelligence makes you a better lawyer,” ABA News Publication, October 2017, www.americanbar.org/news/abanews/publications/youraba/2017/october-2017/how-successful-lawyers-use-emotional-intelligence-to-their-advan/. According to a Princeton University survey examining public perception of a variety of jobs, lawyers are seen as highly competent but “low-warmth.”²2 Susan T. Fiske and Cydney Dupree, “Gaining trust as well as respect in communicating to motivated audiences about science topics,” PNAS Sept. 16, 2014, Volume 111, suppl. 4, at 13593–13597, www.pnas.org/doi/epdf/10.1073/pnas.1317505111. Engineers, scientists, researchers, accountants, and CEOs also rank as high competence/low warmth; of all groups, lawyers have the lowest “warmth” rating.³3 Id.

Although we are trained in law school to develop our critical skills, applying those skills to handling our emotions and those of our colleagues and clients can be difficult for us. Yet effective communication, attention to detail, working within time constraints, and overall professionalism—all deemed “soft skills”—are essential to the practice of law.⁴4 “A Study of the Newly Licensed Lawyer,” The Bar Examiner, Volume 82, Number 1, March 2013, https://www.ncbex.org/assets/media_files/Bar-Examiner/articles/2013/820113testingcolumn.pdf, indicates that the skills and abilities newly licensed lawyers found most significant were: written communication, paying attention to details, listening, oral communication, and professionalism. Our training and our legal culture are likely the reason for our below-average emotional intelligence score. We are trained to spot issues, anticipate problems, and focus on facts rather than emotions. This training does not serve us well when we need to look beyond issues and facts.⁵5 For an interesting take on what is valued in law school participation, see Margaret Montoya, “Mascaras, Trenzas, y Grenas: Un/Masking the Self while Un/Braiding Latina Stories and Legal Discourse,” 17 Harv. Women’s L.J. 185 (1994). And because we tend to hire personalities similar to ours, we unintentionally perpetuate this cycle.

Our lack of emotional warmth and empathy also hinders our ability to train new lawyers in the soft skills that are not typically taught in law school. We may be unable to empathize with the struggles of the developing lawyer, and therefore we may not be able to provide feedback that is both constructive and rigorous.⁶6 The American Psychological Association has recommended the use of 20 important principles from psychology for Pre-K-12 learning, www.apa.org/ed/schools/teaching-learning/top-twenty-principles.pdf. In its study, the APA has indicated that interpersonal relationships and communication are critical to the teaching-learning process. The training provided in practice is crucial, however, as a gap remains between the theoretical training law students receive and the actual practice of law.  

Although law schools are trying to address this gap, it persists, due to a variety of reasons: increasing complexity of the law, need for specialization, higher costs of legal services (which in turn affords little time for mentoring and training), and larger law firms. Between high hourly rates and an urgent need for sophisticated knowledge, providing on-the-job training becomes difficult.⁷7 Stephen Friedman, “Why Can’t Law Students Be More Like Lawyers?” 37 Univ. Tol. L. Rev. 81 (2005).

Most lawyers feel that their legal education was not very helpful to their ability to develop critical practice skills.⁸8 Martin Pritikin, “Are Law School Curriculums Preparing Students to Succeed?” The National Jurist, May 8, 2018, https://nationaljurist.com/national-jurist-magazine/are-law-school-curriculums-preparing-students-succeed. Legal employers feel the same.⁹9 Id. And yet, there are very real consequences for the inability to communicate well in writing and orally, to pay attention to detail, and to work within time constraints. A few real-life examples highlight what is at stake.  

• In Kuzmin v. Thermaflo Inc.,¹⁰10 Nos. 2:07–cv–00554–TJW, 2:08–cv–0031–TJW–CE, 2009 WL 1421173 (E.D. Tex. May 20, 2009). the court imposed sanctions and noted, “As a preliminary matter, … counsel’s brief is poorly written, replete with improper spelling and bad formatting. By submitting a poorly written brief, the attorney fails the Court as well as the client.”
• In Sanfilippo v. Comm’r of Social Security,¹¹11 No. 8:04-CV-2079-T-27MSS, 2008 WL 1957836 (M.D. Fla. May 5, 2008). the court reduced the attorneys’ fees because the brief was replete with spelling and grammatical errors. “Upon cursory review of the memorandum submitted by Plaintiff … it is apparent that its quality does not reflect the time claimed to have been invested in its preparation. It is rife with typographical and grammatical errors. It contains conjecture and hyperbolic editorializations that have no place in a legal memorandum. … [It] was virtually devoid of citations to legal authorities and stated only in passing the central legal issue that resulted in the reversal and remand ultimately ordered by the Court.”
• In Hurlbert v. Gordon,¹²12 824 P.2d 1238 (Wash. Ct. App. 1992). the Washington Court of Appeals imposed monetary sanctions on the attorney whose lack of attention to detail resulted in inaccurate citations. “[The] brief contained numerous references to clerk’s papers which were either non-existent, or difficult if not impossible to find, because of typographical errors in the references. … Virtually all of the factual statements made in the argument section of the brief were made without reference to the record, in direct violation of RAP 10.3(a)(5) (which is incorporated by reference into RAP 10.3(b)), making it necessary to refer back to the statement of facts, many pages earlier in the brief, in order to track (or to attempt to track) the factual statements back to the record. Finally, in several instances case citations contained typographical errors and in numerous other instances cases were cited which did not support the positions for which they were cited.”
• In Toshiba America Information Systems, Inc., v. New England Technology, Inc.,¹³13 No. SACV 05–00955–CJC(MGLx), 2007 WL 8089815 (C.D. Cal. November 14, 2007). the court denied Toshiba’s motion for attorney fees due to its attorney’s poor time management skills. The motion was not filed on time because the courier taking it to the courthouse arrived after 4.p.m., when the clerk’s office had closed. The court noted that “the entirely foreseeable obstacle of traffic in Southern California in the late afternoon … cannot justify an enlargement of time.” Toshiba’s attorney had asserted that he had a practice of waiting until 45 minutes prior to the filing deadline before passing the motion to his courier, and that this plan had worked in the past. The argument did not persuade the court, which stated: “Although this pattern of conduct may have previously worked …, it is not a good faith reason for the delay … . [Counsel] knew since at least September 10, 2007, the date of this Court’s Tentative Order Granting [Toshiba’s] Motions for Summary Judgment, that he would need to prepare a motion for attorneys’ fees. He waited a month later, until 3:14 p.m. on October 10, to attempt to file the motion. Because [Counsel] made a conscious decision to wait until the final hour to file his motion, he assumed the risk that on October 10, his luck would run out.”

While the issues in these cases did not stem solely from inexperience, it is too often the work product of newly minted lawyers that suffers from these types of problems. So how do we break the cycle? If we do not possess many of the soft skills needed to train, how can we smooth the transition from law school to law practice? How can we teach better writing, better attention to detail, and better time-management skills unless we train ourselves in using soft skills—the spoonful of sugar that makes the medicine go down?

Key principles in emotional intelligence are self-awareness (understanding and recognizing one’s emotions), self-management (practicing being calm, reflecting rather than reacting), empathy and social awareness (putting ourselves in others’ positions), and open and effective communication (direct and non-defensive, steering clear of assumptions). 

Through years of teaching experience, we have learned that open and effective communication might be the tool most helpful when interacting with new attorneys fresh out of law school.¹⁴14 A helpful way to practice open and direct communication is found in the short set of exercises at the end of each chapter of Marshall Rosenberg’s book on nonviolent communication. See Marshall B. Rosenberg, Nonviolent Communication, A Language of Life (3d ed. 2015). The main processes for open communication involve observing, rather than evaluating (Hank has not scored a goal in 20 games versus Hank is a poor soccer player), expressing one’s feelings rather than expressing what the other person is feeling (I feel frustrated when you come late versus you must not care about being on time), expressing one’s needs (I am irritated when you leave company documents on the conference room floor, because I want our documents safely stored versus you irritate me when you leave company documents on the conference room floor) and requesting concrete actions rather than demanding them (I would prefer if you could leave the documents on the table versus you must stop). Using these processes, in combination with the power of empathy—validating statements such as “I understand,” “It must be difficult,” and “I would feel the same” allows us to connect compassionately with the recipients of feedback and permits them to transcend the paralyzing effect of fear and judgment on their ability to learn.¹⁵15 Research has shown that performance feedback can cause defensiveness and actually hurt performance. See Guy Itzchakov and Avi Kluger, “The Power of Listening in Helping People Change,” Harv. Bus. Rev., May 17, 2018, https://hbr.org/2018/05/the-power-of-listening-in-helping-people-change.

Not only will using these tools help us improve the practical skills of a new generation of lawyers but it also—selfishly—will help us become better leaders.¹⁶16 Vivek Wadhwa, Ismail Amla, and Alex Salkever, “How Microsoft made the stunning transformation from Evil Empire to Cool Kid,” Fortune Magazine, Dec. 21, 2021, https://fortune.com/2021/12/21/microsoft-cultural-transformation-book-excerpt-satya-nadella/. When Satya Nadella, CEO of Microsoft, took over the company in 2014, he bought all members of his senior leadership team a copy of Nonviolent Communication. Nadella instituted a culture change at Microsoft, refusing to tolerate anger, aggressive behaviors, or infighting. Since Nadella took over, the company’s market capitalization has increased from roughly $300 billion to about $2.5 trillion today, and Microsoft has now surpassed Apple and Google as one of the most valuable companies in the world. 

NOTES

1. “How emotional intelligence makes you a better lawyer,” ABA News Publication, October 2017, www.americanbar.org/news/abanews/publications/youraba/2017/october-2017/how-successful-lawyers-use-emotional-intelligence-to-their-advan/.  

2. Susan T. Fiske and Cydney Dupree, “Gaining trust as well as respect in communicating to motivated audiences about science topics,” PNAS Sept. 16, 2014, Volume 111, suppl. 4, at 13593–13597, www.pnas.org/doi/epdf/10.1073/pnas.1317505111. 

3. Id.

4. “A Study of the Newly Licensed Lawyer,” The Bar Examiner, Volume 82, Number 1, March 2013, https://www.ncbex.org/assets/media_files/Bar-Examiner/articles/2013/820113testingcolumn.pdf, indicates that the skills and abilities newly licensed lawyers found most significant were: written communication, paying attention to details, listening, oral communication, and professionalism.  

5. For an interesting take on what is valued in law school participation, see Margaret Montoya, “Mascaras, Trenzas, y Grenas: Un/Masking the Self while Un/Braiding Latina Stories and Legal Discourse,” 17 Harv. Women’s L.J. 185 (1994). 

6. The American Psychological Association has recommended the use of 20 important principles from psychology for Pre-K-12 learning, www.apa.org/ed/schools/teaching-learning/top-twenty-principles.pdf. In its study, the APA has indicated that interpersonal relationships and communication are critical to the teaching-learning process.

7. Stephen Friedman, “Why Can’t Law Students Be More Like Lawyers?” 37 Univ. Tol. L. Rev. 81 (2005).

8. Martin Pritikin, “Are Law School Curriculums Preparing Students to Succeed?” The National Jurist, May 8, 2018, https://nationaljurist.com/national-jurist-magazine/are-law-school-curriculums-preparing-students-succeed.  

9. Id.

10. Nos. 2:07–cv–00554–TJW, 2:08–cv–0031–TJW–CE, 2009 WL 1421173 (E.D. Tex. May 20, 2009).

11. No. 8:04-CV-2079-T-27MSS, 2008 WL 1957836 (M.D. Fla. May 5, 2008).

12. 824 P.2d 1238 (Wash. Ct. App. 1992).

13. No. SACV 05–00955–CJC(MGLx), 2007 WL 8089815 (C.D. Cal. November 14, 2007).

14. A helpful way to practice open and direct communication is found in the short set of exercises at the end of each chapter of Marshall Rosenberg’s book on nonviolent communication. See Marshall B. Rosenberg, Nonviolent Communication, A Language of Life (3d ed. 2015). 

15. Research has shown that performance feedback can cause defensiveness and actually hurt performance. See Guy Itzchakov and Avi Kluger, “The Power of Listening in Helping People Change,” Harv. Bus. Rev., May 17, 2018, https://hbr.org/2018/05/the-power-of-listening-in-helping-people-change.

16. Vivek Wadhwa, Ismail Amla, and Alex Salkever, “How Microsoft made the stunning transformation from Evil Empire to Cool Kid,” Fortune Magazine, Dec. 21, 2021, https://fortune.com/2021/12/21/microsoft-cultural-transformation-book-excerpt-satya-nadella/. When Satya Nadella, CEO of Microsoft, took over the company in 2014, he bought all members of his senior leadership team a copy of Nonviolent Communication. Nadella instituted a culture change at Microsoft, refusing to tolerate anger, aggressive behaviors, or infighting. Since Nadella took over, the company’s market capitalization has increased from roughly $300 billion to about $2.5 trillion today, and Microsoft has now surpassed Apple and Google as one of the most valuable companies in the world.