If you are a private lawyer, you can get more people to hire you.
If you are a court-appointed lawyer, you can help your clients appreciate you more.
You can pick a better jury.
You can demolish your adversary’s case.
You can perform a better direct examination.
You can perform a better cross-examination.
You can be happier in your relationship; you can be a better parent.
How, you ask?
I already told you. Listen.
That’s all. Just listen.
If you listen to your potential clients instead of playing the big smart lawyer, more of them will hire you.
If you listen to your clients, they will know that you care and will appreciate your help.
If you listen to your potential jurors and give them an opportunity to reveal their truths instead of mechanistically asking them yes-or-no questions from your list, you will pick a better jury.
If you listen to your adversary’s case, hearkening especially to the things not said, you can find the seams in the case and demolish it.
If you listen to your witness’s testimony, you can perform a better direct examination.
If you listen to your adversary’s witness’s testimony on direct, again paying special attention to the words unsaid as well as to the emotions behind the words, you can perform a better cross-examination.
If you listen to your partner and your children, you can be happier in your relationship and be a better parent.
I’m willing to bet that you don’t listen very well. Nothing personal, but to people raised in a culture in which “getting the last word” is considered victory and in which the position of “speaker” is one of power (consider “Speaker of the House”), active listening is difficult. We feel like we cede our power by listening to our adversaries rather than injecting our own point of view at every opportunity.
Listening isn’t something that we’re taught in school. That’s too bad, because it’s something that we can easily learn. (Google “active listening” for a plethora of resources; here, for example, are “Ten Tips to Be a Better Listener.”)
Trial lawyers are no different than anyone else. We tend to plan the next question as the witness answers the last, and plan the counterargument as our adversary makes her argument. But when we are planning counterarguments and questions, we are not listening, and when we aren’t listening we miss things.
So forget that you’re the big smart lawyer, ditch your lists of voir dire, direct, and cross-examination questions, stop worrying about what you’re going to say next, and start listening.