One of the great skills that should be rewarded, particularly in lawyers, is listening well. That means for many lawyers that they have to come up with the “right” solution quickly. But maybe doing that may indicate we actually haven’t listened well.

As one article on listening explains, “Feeling understood is less about answers and more about someone accurately naming your reality.”

What makes that hard for anyone, and particularly lawyers?

Our brains are partly to blame. We speak at roughly 125 words per minute, but our brains can process up to 500 words per minute. Which means that while the other person is slowly making their way through what they have to say, our brain is drafting questions and comebacks, checking our calendar, scrolling our to-dos and maybe even critiquing outfits. Which again explains why we typically remember only about 25-50 percent of what we hear, even though we look like we’re listening.

Further, we are always on high alert to protect ourselves. “So we are unconsciously scanning for danger to our ego: Are you blaming me, criticizing me, making me the bad guy?” That can prompt us to interrupt, argue, and/or start lawyering the details, spiraling an attempt at listening into all-out battle.

Listening well involves three factors: attention, reflection, and verification.

“Attention is undivided focus: no texting under the table, no mental drafting. Reflection is mirroring back what you heard, especially the feeling: ‘So you felt ignored in that meeting.’ Verification is checking: ‘Did I get that right?'” That last question is when many people finally feel heard.

Here’s a framework that can help improve our listening:

“Try this P.A.U.S.E. method in your next real conversation:

P – Pause for two full seconds before you reply. This gives your threat system time to cool and your brain time to actually encode what you heard.

A – Acknowledge the feeling: “That sounds really disappointing,” or “I can hear how stressed you are.” Naming emotion is emotional validation, and it calms the nervous system on both sides.

U – Understand a layer deeper with one question: “What part of that felt the worst?” or “What do you need most right now?”

S – Sit with a bit of silence. Let them finish, even if you are itching to jump in.

E – Express your response only after you have reflected and checked: “So you are mainly worried about X; did I get that right?” Then, and only then, offer ideas or your own perspective.”

Learning about our emotions–their names, their attributes, what prompts them, how they physically feel–can be the work of a lifetime. Thankfully, there are a number of guides to help along that path.

The earliest and perhaps the most comprehensive attempt at diagramming emotions is Plutchik’s Wheel of Emotions unveiled in 1980. SixSeconds gives a good description and explanation of how to use it.

Tiffany Watt Smith’s The Book of Human Emotions (2016 paperback) reviews 156 feelings, both rare and familiar, reciting each emotion’s story by drawing on history, anthropology, science, art, literature, music and popular culture.

Lisa Feldman Barrett’s How Emotions are Made (2017) explores how emotions evolve and the role emotions play in our thoughts.

2021–Brene Brown’s Atlas of the Heart (2021) describes 87 human emotions and experiences, organized into 13 categories, and the language we need to understand them, as well as how to cultivate meaningful connections.

The former CEO of Triton Digital Neal Schore’s The 25th Hour focuses on freeing up time by efficiently managing your own emotional reactions rather than trying to control others, and offers creative strategies and exercises to overcome automatic responses and reset after tough experiences.

As part of the firm’s effort to attract talent to drive it in a “tech-led, human-powered world,” Ernst & Young has announced that they are paying $100 million in bonuses to reward “human skills, such as leadership, judgment, business acumen, collaboration and an ability to adapt.”

“This significant investment reinforces our commitment to building the workforce of the future by recognizing the skills and behaviors needed to lead our profession and serve our clients with excellence.” 

Human skills! That are worth as much as or more than tech skills! It looks like the day of valuing great human skills in business–and of actually paying more for them–has arrived, and those who are well-versed in collaboration, adaptability, good judgment, and leadership will be rewarded for those abilities.

Will legal employers follow suit? And which human skills would and should they pay more for?

It’s something we do in all sorts of social and professional scenarios. What exactly should I make of this person? What are their talents, their prospects? What is their likely long term potential? HR professionals, but also everyday professionals, often pride themselves on their ability to answer those questions about the people they work with or are considering to hire. We also assume we can answer those questions when it comes to assessing important social connections, like judging candidates for friendship and marriage.

And indeed, research has shown that people are fairly good at judging each other’s personalities. But then came a study authored by researchers from the University of Cambridge and Stanford University. They concluded that computers fed someone’s social media history can more accurately answer all of those questions about that person better than any human, including close friends, colleagues, and family. And the person themself.

In the study, 86,220 volunteers completed a 100-item personality questionnaire about themselves. Computer-based personality judgments, in part based on Facebook Likes, were obtained for 70,520 participants. Human personality judgments were obtained from the participants’ Facebook friends, who were asked to describe a given participant using a 10-item personality measure. 

The researchers concluded that “people’s personalities could be predicted automatically and without involving human social-cognitive skills” by using computer-generated data combed from digital footprints. And importantly, those computer-sourced assessments and predictions, including predictions of life outcomes, such as substance use, political attitudes, and physical health, were more accurate than those generated by the participants’ self-rated scores and the judgments made by people very close to the participants, like a spouse or close friend or colleague. In other words, your computer may know you better than you or those closest to you do.

Why is that? The researchers offered that “computers have the capacity to store a tremendous amount of information, which is difficult for humans to retain and access.” And they noted that the potential growth in both the sophistication of the computer models and the amount of digital information available might lead to “computer models outperforming humans even more decisively.”

They acknowledged potential advantages to come out of this advancing computer knowledge, like more targeted marketing messages, more accurate recruiting, products and services better aligned with customers’ needs and less intrusive personality information gathering. They even suggested that “in the future, people might abandon their own psychological judgments and rely on computers when making important life decisions, such as choosing activities, career paths, or even romantic partners,” a scenario which might “improve people’s lives.”

Granted, all of this intimate knowledge of someone might make a computer a potentially good source of advice and guidance. Unfortunately, a study by University of Ottawa researchers who looked at nearly 40,000 students in Grades 4 through 12 found that roughly one in five used AI chatbots for emotional support or advice, but those using AI for those purposes were twice as likely to have clinical emotional problems as those who did not.

But the Cambridge/Stanford study also acknowledged potential risks. People might distrust or reject digital technologies and ultimately governments over fear of what might become known about them, or simply due to privacy concerns.

Remember the 2013 film Her? As the study points out, in that film “the main character falls in love with his operating system. By curating and analyzing his digital records, his computer can understand and respond to his thoughts and needs much better than other humans, including his long-term girlfriend and closest friends. Our research, along with developments in robotics, provides empirical evidence that such a scenario is becoming increasingly likely as tools for digital assessment come to maturity.”

The researchers concluded by saying that “we hope consumers, technology developers, and policy-makers will tackle those challenges by supporting privacy-protecting laws and technologies, and giving the users full control over their digital footprints.”

Note that this study was done in 2014, fully 12 years ago. Its findings are now being eclipsed by the furious debate over what AI can and should be able to do. The recent chatbot lawsuits we’ve noted are the logical outcome of computers having such intimate knowledge of someone–that by using digital data, an AI avatar can know the person interacting with it very well and sometimes better than those humans closest to them, or even than the person themself. And they can use that data to manipulate the person into doing things they might not otherwise do, even murder.

Years ago there was talk of developing a mouse that would use sensors imbedded in the plastic to monitor our emotional state while we work, which would then make suggestions as to how to improve performance. While the prototype was interesting, it never made it to market.

However, now a plethora of wearables are hitting the market to address all sorts of physical and mental health issues. Now details from an experimental program using a machine-learning coaching program “based on data collected via personal devices about participants’ mood and daily habits” holds promise for lawyers suffering from mood disorders. Using smartwatch and phone app data, the program “identified each participant’s primary lifestyle triggers of low mood, enabling coaches to create individualized mood improvement plans.”

The smartwatch tracked heart rate and exercise levels and participants logged their mood and answered short questions each day about their quality of sleep, diet, activity level, and how often they talked with friends or family. Then coaches recommended individualized behavioral programs and discussed progress every week.

After six weeks, depressive symptoms were significantly reduced. While most interventions only show about a 30% remission, this program almost doubled those results and significantly lowered anxiety symptoms as well. An encouraging side effect were higher scores on memory and attention tests. And the benefits persisted when checked three months later.

Arguably this result might be achievable by checking in with the various apps available that track mood, identifying patterns, and individually making helpful adjustments in behavior and environment. But the addition of a savvy coach reviewing a handful of important data makes the approach much more powerful. Hopefully this program makes it to market!

Founded in the UK and now expanding into the US, Lawhive acquires solo practitioners and small firms that can retain their professional identity and legal independence while gaining access to shared infrastructure, capital investment and technology designed to standardize best practices and best templates and modernize legal work with online delivery and flat fee pricing. An AI paralegal/junior associate “Lawrence” assists by providing client intake, document drafting, research, and case and payment management.

It’s not a new strategy–private equity has been wrapping up several industries, such as dental, veterinarian, HVAC, it’s just a newish approach when it comes to legal advice. Perhaps without the high debt to service, although that’s not clear yet.

 As Fortune reports: “The company is among a wave of startups employing this new business model. Others include Robin AI, General Legal, Third Chair, and LegalOS. The model is distinct from other AI law startups such as Harvey, which just sell AI systems for lawyers to use.”

The laudable public good is to provide more accessible, reasonably-priced legal expertise.

As for the lawyers involved, the proof is in the pudding. While the company promises lawyers less busywork and more legal work with the benefit of ready clients, whether the fee-share translates into a competitive compensation scale is yet to be seen. Further, there is evidently no real estate involved other than what the lawyer brings to the task, and, given the remote settings, there may be heightened risks of loneliness and its attendant curses of depression/substance abuse/etc. But as Lawhive’s lawyer count approaches 1000, there should be some answers to these and other questions in the not too distant future. Stay tuned!

A US teenager, 16-year-old Chase Nasca, spent the last few months of his life consuming TikTok content that promoted or normalized self harm and suicide. Then he committed suicide.

While many of the videos he watched did not violate TikTok’s content rules individually (although nearly 10 percent did), all together they created exactly the kind of repetitive pattern the company had recognized as unsafe in 2021 and designed a safeguard to interrupt. A safeguard that Nasca, like 15 million other TikTok users, was not given the benefit of. That decision was consciously made by TikTok as an experiment they ran for a year to test whether the safeguard reduced the number of daily active users in the protected group (who were 90 percent of users), a business concern that was evidently more important than what happened when other teenagers were repeatedly consuming those images of suicide.

As it turns out, suicide is what happens. Nasca died in February of 2022.

A subsequent review of Nasca’s account found it had become trapped in a bubble filled with videos about suicide, self-harm, depression, loneliness, and hopelessness. During the final two weeks of his life, 73 percent of the 7,563 videos served to Nasca had themes of mental health struggles, suicide awareness, loneliness, relationships, or sadness.

Nasca’s parents filed a lawsuit against TikTok and its parent company, ByteDance, claiming Chase had no history of mental illness and primarily used the app to look up motivational workouts and pop culture. However, the lawsuit alleged that TikTok’s algorithm overrode his search history and actively targeted him by flooding his “For You” page with more than 1,000 unsolicited, highly graphic videos glorifying suicide and self-harm.

TikTok’s legal team successfully argued that the case should be dropped based on Section 230 of the federal Communications Decency Act, which immunizes online platforms from liability regarding content created by third-party users. Nonetheless, a number of suits involving addiction have been settled by TikTok right before trial and the Ninth Circuit has allowed several such suits to proceed despite the Section 230 defense.

The conclusion that emotional intelligence researchers easily reached? While it’s well established that other humans can spread a mood through emotional contagion, social media itself is expert in manipulating mood.

A secret, psychological experiment that Facebook conducted in 2011 was the harbinger of the TikTok fiasco. Facebook manipulated the News Feed algorithms of almost 700 thousand randomly selected users to test “emotional contagion”—whether online exposure to positive or negative emotional content could alter the real-world moods and posting behavior of users. The study concluded that those who were exposed to more positive content had more positive postings and similarly those exposed to more negative content made more negative postings. Although the secret aspect of the experiment became arguably more notorious than the study results, no real steps were taken to reduce the likelihood of intentional manipulation of emotions via social media.

Both of these experiments’ findings are fully in line with the more personal version of negative content repeatedly spewed by misbehaving algorithms–rumination. Universally acknowledged as not useful in any way, rumination is particularly common in lawyers who are prone to go over again and again what they perceive to be mistakes. What exactly went wrong? What else went wrong? How injurious were they to the lawyer’s reputation, career? What else could have been done? What would the better outcome be? Lashing oneself with guilt and self-deprecation for extended periods of time., rumination is a recipe for feeling and acting worse, not better. A self-delivered penance for what is likely a self-assessed and highly-inflated failure does not improve the next round of decisions. It actually lowers one’s confidence and infects future action with fear.

Social media can manipulate your mood. So can you.

As the title of the article states, “AI Outperforms Law Professors in Stanford Law Study.” And how was that?

Sixteen law professors from highly regarded law schools were asked to evaluate 3000 answers to 40 reasonably complex contract questions. And 75% of those answers written by AI were judged to be superior to those written by human law professors.

As the lead researcher said, “We focused on law precisely because it requires judgment, nuanced reasoning, and the ability to navigate ambiguity—not just factual recall.” The conclusion was: “The AI systems performed comparably to the best human instructor in the study.”

While the researchers ventured that their study indicated “AI tutors can offer high-quality, on-demand support that complements classroom instruction,” it’s the other part of that thought that may have critics unhappy–that AI “may broaden access to expert guidance.” Access to expert guidance apart from the humans who have historically provided that guidance, that is.

There’s no question that making legal advice more available and at a reasonable cost is a holy grail for the profession. Or at least so we say. But now that that may be feasible, are we ready for the fallout? Sophisticated legal advice at the expense of the over 140,000 lawyers who graduate from law school every year, who are likely already way behind in the nuanced reasoning, not just factual recall, that AI can provide at the click of a mouse? Is serious specialization going to be necessary to even claim that human lawyers can give AI a run for its money?

There are courts that now require sworn statements that AI was not used in the preparation of pleadings, or at the least, a disclosure as to which segments were written with the aid of AI and an affirmation that those parts were independently checked for accuracy.

That may be history soon. Perhaps the new attestation will be that in service to our clients, we have fully utilized every tool available to us, including the superior “nuanced reasoning” that AI can provide.

Did you hear the one about the Netflix exec who was fired from his million-dollar job after participating in a trust exercise at a company retreat?

Seems like there should be a joke in there somewhere, but that’s not how he took it. He’s suing Netflix because they used an admission during a trust exercise–that he had taken a medically supervised ketamine treatment for depression after the death of his mother, a treatment which is, by the way, legal–as part of the reason for firing him.

What were the comments? To never trust a trust exercise. Big brother is always watching you and will use whatever methods they have to find out everything they can about you. And eventually use it against you.

It’s a sad state of affairs. Both as commentary on the perceived integrity of these trust exercises and the perceived integrity of the companies using them. It will be interesting to see if the courts accord such admissions any protection based on the stated situation: that the participants are in a safe space where they can trust others with their private lives.

Muir has just returned from attending the 10th Annual Congress on Emotional Intelligence held in New Haven, CT by The International Society of Emotional Intelligence (TISEI) and the Yale Center for Emotional Intelligence.

In a quick highlights review, here are some of the takeaways:

  • Peter Salovey’s and John Mayer’s initial article on emotional intelligence in 1990 languished for over five years before it started to have an impact.
  • Having an emotional ally (whether someone related or not) who can provide consistent warmth, emotional safety and nonjudgmental feedback promotes emotional health.
  • Personal intelligence, where perception is critical, rather than “thing-oriented” intelligence is what makes us able to navigate better in our relationships.
  • Personal beliefs that emotions matter and that we have agency in managing emotions is a mindset that is self-fulfilling, predicting positive emotional states. And in leaders, that mindset promotes employees’ wellbeing.
  • Those who have the ability to accurately detect and calm their own heart rate have higher emotional intelligence and make more money.
  • Those workers who achieve their preferred emotional state while working (which may not be only positive feelings) through self-management in fact get better work results.
  • The MCAT, which is administered to those applying to medical school, includes an emotional intelligence portion.
  • Cortisol from stress blocks testosterone, which in turn shrinks muscles.
  • If emotions aren’t regulated, cortisol from stress results in downward freefall of memory ability after 99 seconds.
  • Women’s cortisol levels go up faster than men’s during stress but come down faster after the stress is regulated.

One disappointment is typical–while research continues to refine and clarify what exactly emotional intelligence is and how it can be measured, very little is discussed about effective interventions that raise aspects of emotional intelligence that we all say are teachable. What a conference that would be!

In a wrap up session, where over 35 nations were represented, one of the principals surprisingly chose to rant about his particular political view.

Safe space?