In 2001, Prof. Stefan H. Krieger of the University of Oregon published an article entitled “A TIME TO KEEP SILENT AND A TIME TO SPEAK: THE FUNCTIONS OF SILENCE IN THE LAWYERING PROCESS”, 80 Or. L. Rev. 199 (2001), which I wish to summarize here for legal research purposes of the visitors of this blog.
In his article, Prof. Krieger makes the following conclusions, which, I think, deserve serious reflection and consideration by the Bench and the Bar:
1. The legal profession is infatuated with the verbal. In relationships with clients, lawyers want detailed information and often become frustrated with evasive and ambiguous answers. In negotiations, they frequently strive to overwhelm the other side with words: arguments, threats, and posturing. When a tentative agreement has been reached, they spend, at least in the opinion of laypersons, inordinate amounts of time, parsing each and every term, and attempting to forge a deal that will take into account every possible eventuality. In formal hearings and trials, lawyers pride themselves on the precision and incisiveness of their arguments and examinations, ridiculing a witness' uncertainty and hesitation and often trying to take control of the courtroom with the power of their voices.
2. Much of legal education supports this culture. Many law professors demand the quick, precise answer, take advantage of student pauses and hesitations to make their point, and often appear to reward the glib response. At the end of the semester, mastery of a subject is evaluated solely on a three-hour examination in which rapid recall and recitation of the course material is the value.
3. Lawyers' infatuation with the verbal, however, ignores the fact that not all communication is informational. The details, demand for precision, search for the right words, the focus of most of a lawyer's craft, can ignore the interpersonal and contextual components of language. Lost in all the verbiage is an understanding of the communicative power of silence. Silence plays a variety of functions in human communication both to facilitate the sending of verbal messages (pauses and hesitations; intervening silences) and to send their own messages (assent; promotion of reflection and discussion; deep silences; and marking of social distance). Disregard of these functions can often lead to unreflective discourse and misunderstanding. Lawyers can have all the words right but can miss the mark when they do not have an appreciation of the function of the spaces between words. Especially in cross-cultural contexts, the failure to understand how someone from a less verbal culture uses silence can result in serious misunderstandings.
Effective lawyering requires knowledge not only of the grammar of language, but also the rules of silence. Obviously, much of a lawyer's practice needs to focus on verbal precision and the crafting of words into a persuasive and coherent message. But without a grasp of the forms and functions of silence, lawyers cannot communicate effectively with their clients, their adversaries, or decision-makers. Both as speakers and listeners, the messages sent can be lost or misunderstood in all the lawyerly noise. As strange as it may initially sound, a lawyer can at times be most effective when she does not speak.
Most of literature assume that a lawyer's skill is almost exclusively verbal and focus primarily on how a lawyer should craft language to communicate effectively. Lawyers are students of language by profession. They exercise their power in court by manipulating the thoughts and opinions of others, whether by making speeches or questioning witnesses. In these arts the most successful lawyers reveal (to those who can appreciate their performance) a highly developed skill. While this literature examines the use of language in the representation of clients, it largely ignores the role of silence in the lawyering process. Moreover, it rarely acknowledges that words can, at times, impede communication.
Many commonly assume that silence on the part of a lawyer, client, or witness has a negative connotation and discourage its use for clear communication. Silence during a trial may present considerable problems for the court. By its very nature, silence is ambiguous and therefore messy. Questions about its meaning may lurk in the shadows unless the court or the attorneys assume an active role in resolving the ambiguities. For example, what does it mean when a witness is slow to answer or generally reticent? What meaning lies in the behavior of a hesitant witness - careful thinking in order to report recollections faithfully or cautious planning to fabricate a false version?
Scholars in other social disciplines have recognized the significance of silence as a powerful means of communication. They reject the notion that silence is simply the absence of speech and contend that silence can serve positive, as well as negative, communicative functions. They assert that like speech, silence can have a wide variety of meanings depending upon several factors, including the mental states of the participants, the context of the discourse, and the culture within which the communication occurs.
Depending upon the backgrounds of the participants, the occasion, and the verbal and nonverbal contexts surrounding the silence, the following list identifies a number of typical potential meanings:
1. The person lacks sufficient information to talk on the topic.
2. The person feels no sense of urgency about talking.
3. The person is carefully pondering exactly what to say next.
4. The silence may simply reflect the person's normal rate of thinking.
5. The person is avoiding discussion of a controversial or sensitive issue out of fear.
6. The silence expressed agreement.
7. The silence expressed disagreement.
8. The person is doubtful or indecisive.
9. The person is bored.
10. The person is uncertain of someone else's meaning.
11. The person is in awe, or raptly attentive, or emotionally overcome.
12. The person is snooty or impolite.
13. The person's silence is a means of punishing others, of annihilating others symbolically by excluding them from verbal communication.
14. The person's silence marks a characteristic personality disturbance.
15. The person feels inarticulate despite a desire to communicate; perhaps the topic lends itself more to intuitive sensing than to verbal discussion.
16. The person's silence reflects concern for not saying anything to hurt another person.
17. The person is daydreaming or preoccupied with other matters.
18. The person uses silence to enhance his own isolation, independence, and sense of self-uniqueness.
19. The silence marks sulking anger.
20. The person's silence reflects empathic exchange, the companionship of shared mood or insight.
There is a grammar of silence, a set of rules structuring the relationship between verbal utterances and the unspoken, which demonstrates the function of silence in a given situation. This grammar may seem, at first blush, more difficult to understand than the grammar of the verbal, but it still can be similarly decoded.
The basic thesis of the article of Prof. Krieger is that effective lawyering requires an awareness of the significant role that silence plays in communication. Most lawyers love to hear the sound of their own voices and often view silence - either on their own part or on the part of their client, a witness, or an opposing attorney - as a sign of weakness. Consistent with the culture of much of contemporary society, many lawyers feel the need to avoid silence at all possible costs. In the process, they can get lost in all the noise. As speakers, they can easily turn off their audiences by talking too much; as listeners, their need to hear immediate responses, to fill in any silence, can create obstacles to fruitful discourse. Silence frequently does not reflect a lack of knowledge or hesitancy, but provides a means for expressing feelings and ideas. Indeed, it often is one of the most effective ways of combating the noise of legal communication and reanimating the power of words. Understanding the positive functions of silence can help attorneys better interpret silences on the part of a client, witness, or adversary; can assist them in communicating more effectively with clients, adversaries, and decision makers; and can give them an appreciation of the uses of the unspoken for persuasive advocacy.
Obviously, silence, just as verbal communication, does not always serve a positive function. At times, for instance, silence can indicate weakness, avoidance, lack of preparation, or deception. The point of is not to endorse the unbridled use of silence as a means of communication or to encourage lawyers to assume that a client's or adversary's lack of response always reflects some deeper, profound meaning. The thrust is to urge lawyers to become more conscious of their own use of words and silence in their communication and to become more reflective about others' silence.
Communication theorists contend that, at least for hearing individuals, there is no such thing as absolute silence. We are thoroughly enmeshed in layers of energy exchanges. The sonic expression of these exchanges is so constant that, for the most part, we remain unconscious of it. In short, there is no real escape from the noisy vibrancy of life. While our ears and its cochlea are our central receptors for hearing, there are no unique "points of view" to audition.
From the standpoint of the function of language, silence is a relative term. It is not simply the absence of language. The misconception that silence is totally apart from language arises from the mistaken belief that language is used solely to exchange information. Communication theorists contend that in addition to the information exchange (the ideational function), language serves at least two other functions: interpersonal, and textual. The ideational function represents those situations when the speaker, as observer, talks "about something". The interpersonal function concerns the interaction of the speaker with the audience. This is the component through which the speaker intrudes himself into the context of the situation, both expressing his own attitudes and judgments and seeking to influence the attitudes and behaviour of others. The textual function makes language relevant by giving it a context. It signals whether a given text is intended as a lecture, poem, play, joke, chit-chat, or some other form of speech event.
All communication, including discourse in the practice of law, consists of far more than exchange of information. Although information gathering and dissemination are certainly important components of lawyering in either the transactional or dispute resolution contexts, the interpersonal and textual aspects of language are also crucial to a lawyer's craft. In an interview with a client, for example, the interpersonal language used by the lawyer in eliciting information can have a significant effect on whether all the pertinent facts within the client's personal knowledge are discovered. In a negotiation, the attorney's choice of language can set the context for the discussions by suggesting to the other side her attitude in regard to the issues on the table or telegraphing her seriousness about reaching a deal. Finally, in a closing argument, regardless of the information the lawyer relates, her language choice can either connect with or alienate the finder-of-fact.
Although silence, by its very nature, provides quite limited informational content about peoples, events, and actions, it can play a significant role in the realm of the interpersonal and textual functions of language. In fact, the dictionary definition of "silence" reflects the fact that silence is part of language, not totally distinct from it. Silence is an alternative or response to speech, a deliberate state or condition, or even a type of communication.
In the context of oral communication, silence and speech are not total opposites. Rather they constitute a "continuum of forms ranging from the most prototypical instances of silence to the most prototypical instances of speech." In a limited capacity, silence allows speech to make sense. Obviously, speech would be pure gibberish without some silences. On a very basic level, the cessation of sound in the production of consonants creates the pattern of consonants and vowels that makes "speech." Pausing or hesitating within the stream of speech makes it possible for each speaker to take her turn. Lulls within a particular conversation give each party an opportunity to reflect on the discourse. Without silence, speech would be nothing but endless noise and could not perform any of the functions of language. Indeed, in situations where speakers do not take a breath, engage in simultaneous discourse, or fail to take a time out from heated arguments, speech can actually be disruptive of communication.
Just as one can utter words without saying anything, one can say something [*211] without uttering words. Examples of such silences are numerous: refusing to answer a question; ignoring a tactless comment; communicating anger or resentment; acknowledging agreement with a proposal; or expressing awe or respect for the other party. And just as the meaning of speech depends in part on silences, the meaning of silences hinges largely on the surrounding utterances. A particular silence only has meaning in the context of its surrounding utterances. The act of saying consists of two basic components: the said and the unsaid. The former component includes the actual utterance and those real and imagined ones that precede it and that follow. The unspoken presumptions and implications belong to the latter.
The repertoire of codes (of either speech or silence) from which we select depends in part on the particular culture in which we are communicating. While in some cultures, for example, density of speech is valued, in others silence is a virtue and loquaciousness is considered antisocial. Accordingly, the decision-making process of when to use speech or silence or any combination of the codes along the noise-silence spectrum may hinge in some way on the specific community's attitudes toward silence.
Not all silence is communication. Communication does not occur, for instance, when a passenger on a bus sleeps wordlessly through the trip next to her seat-mate; when a visitor to an art gallery stands silently awestruck by a work of art; when a hushed courtroom sits still mesmerized by a closing argument; or when an abused woman cowers in silence when attacked by a man. Just as not all noise is part of speech, the absence of sound does not necessarily constitute communication.
French poet Max Picard observed: Language has lost its spiritual quality; all that remains is its purely acoustic quality. Listening is only possible when there is silence in man; listening and silence belong together. Instead of truly speaking to others, today we are all waiting merely to unload on to others words that have collected within us. Speech has become a purely animal, excretive function.
A second form of silence which structures communication is "intervening silence." n64 While pauses and hesitations are primarily unintentional interruptions of the sequence of speech reflecting an effort to find the correct word or meaning, intervening silences are intentional attempts to punctuate words, phrases, or sentences to highlight the content of speech. Of all the senses, only hearing gives the appearance of progressing through time; silences can give a pattern to this temporal flow. Consider, for example, a comedian's telling of a joke. The silence before the punchline commands the audience's attention, stops what could be a monotonous flow. Without this silence, the joke could fall flat. Similarly, the tension created by the storyteller's silence before the suspenseful climax draws the listener's attention.
Related to intervening silences, a third form of structuring silences is "fore and after silence." Within a discrete utterance, intervening silences make particular sound phrases (words, phrases, and sentences) distinct from every other sound phrase. In contrast, fore and after silences make every particular utterance distinct from another utterance. They serve a framing function for speech: fore silences provide the open space immediately before the utterance begins, and after silences furnish an interval immediately after the utterance. They give a silent backdrop for all communication.
The most popular understanding of silence as communication is the belief that the failure of one party to a communication to respond to another party implies assent. Silence on the part of the auditor is frequently taken to mean agreement with the speaker. Since one is usually led to speak when something is wrong, silence suggests that one sees nothing wrong, that he gives assent to what exists. The old legal maxim derived from Roman law, qui tacet consentire videatur ("silence implies consent") reflects this notion. Also, in many other cultures, in particular ritual contexts, silence by a listener is regarded as consent.
A danger exists, however, in over-reliance on this notion. Silence by a listener in response to a demand or request by a speaker can have many more meanings than consent. Indeed, even in the legal setting, silence implies consent is not mechanically applied. Courts look to the full context both before and after the silence to determine its meaning.
Silences can increase our awareness of what we are saying. But they can also communicate to the listener the desire for further reflection and discussion. Communication scholars theorize that lengthy interactive silences allow listeners to make inferences and judgments about what has and has not been said, to reflect on the possible meanings of both verbal and silent messages, and to come to their own conclusions.
Not only can silence encourage processing of the message by the listener, but it can also coax her into expressing herself. Many participants in discourse have the common misconception that the more one speaks, the more one encourages the listener to respond. Many of us become anxious when a listener does not immediately reply to our speech and, before she can answer, we add more words to encourage a verbal reaction. At times, however, excessive talk, repetitious haranguing, and more verbiage can actually terminate the communicative process. Silences can signal that the lines of communication remain open and that no one has the intention of closing them. Too much speech, on the other hand, can have the effect of terminating discourse.
A cautionary note, however, is in order. People who fill their discourse with an inordinate amount of silence can actually discourage open communication. An interesting study of the behavior of participants in small group discussions highlights this point. The researcher found that the participants in discussions viewed silent members (those who did not speak unless spoken to) in a more unfavorable light than not only those who made positive contributions (those who encouraged participation and tried to resolve the conflict) but even those who made negative contributions (those who discouraged participation and resolution). Apparently, participants viewed negative members as contributing more to the resolution of the issues than those who remained silent. To promote communication, then, silence must be used in the context of sufficient information exchange so that discourse is encouraged.
In certain contexts silence can actually communicate an assertion of power. In situations when speech is expected, a communicator, by refraining from words, can attempt to take control of the discourse. Even when the silent communicator is in a subordinated social position, silence can constitute an assertion of power. A suspect in police custody or a hostile witness at a deposition, for example, can refuse to answer or evade questions by the detective or the lawyer. Additionally, silence can communicate an assertion of power by demonstrating dissent. Strategic use of silence by dissenters in a public setting where words are expected can draw attention to the protest and register a judgment of disapproval.
One of the functions of language is ideational: to exchange information about people, objects, and events. By attempting to communicate our knowledge of this information concretely and unambiguously, speech usually serves this function much better than silence. But precisely because this mode of speech conveys certainty of perception, it is often inadequate to communicate certain very strong emotions. Words are used as symbols to convey the knowledge we wish to impart to a listener. At times, however, we have knowledge of an experience we are undergoing but cannot find the words to articulate it. In everyday parlance, we are "left speechless." The only symbols we have to convey this message are "deep silences."
Deep silences occur in several types of situations. First, they will often come in reaction to unexpected conditions such as a tragic report of a sudden death, illness, catastrophe, joyous news of the birth of a child, accomplishment of a friend or family member, or personal success. Faced, on the one hand, with the uncertainty and ambiguity of isolation, bewilderment, or terror, or, on the other hand, with overwhelming feelings of happiness, we frequently feel that words are unnecessary, that the circumstances "speak for themselves." Moreover, in those situations utterances are simply inadequate to convey the message because words, in their very concreteness, fail to express the depth of our feelings.
A second type of deep silence communication occurs between two intimates. Words help to create connections between people, but once those relationships are developed, words may become superfluous. To lovers or old friends, while some information exchange is obviously necessary in discourse, often the purpose of their conversation is not primarily ideational but interpersonal. For intimates, words may be unnecessary and may actually be considered intrusive in the relationship. As one commentator puts it, "It is not through speech or acts but through silence that the deepest bonds are cemented. One sure fruit of this communion of silence is that it invites the deepest and most intimate of confidential sharing."
A third and final type of deep silence is the silence of hatred and anger. While the lack of utterance between two people can reflect intimate communion, that silence - even between the same two individuals - can suggest deep estrangement.
When some people feel betrayed or hurt by a remark or another's conduct, their emotions may be so intense that they may treat the relationship as dead and feel that any verbal exchange would be worthless. They are not merely using silence as a weapon in an argument to persuade the other party or as a "time out" for reflection. By withdrawing from words, they are communicating the rupture in the relationship.
Similar to other communicative silences, whether a particular silence is a deep silence in reaction to an unexpected event, one of intimacy, or one of hatred, will depend on its context. The utterances prior to the silence and the circumstances surrounding it will, of course, help in an understanding of its meaning. But it is important to recognize that a deep silence has its own meaning apart from the utterances: that the communicator's intense emotions have made her feel that words are inadequate, unnecessary, or impossible to express.
Related to formulaic silences are those used to avoid conflict. At times, when individuals are engaged in a highly emotional disagreement, one or more of the parties will refrain from utterance to give themselves the distance to disengage from the conflict. Their purpose is not to reflect on the discourse or develop an appropriate response, but to avoid further confrontation. By giving the parties social distance, silence allows them to "let off steam," to release the tension of the situation.
The final form of silences marking interpersonal distance is the use of silence as a weapon. Here a party does not use silence to avoid conflict but rather as a strategic maneuver in an ongoing conflict. Use of the "silent treatment" sends a message of indifference or even outright disdain for the party, her conduct, or her position on an issue. In fact, "such silent treatment of the opponent may be even more powerful than uttering the harshest of words and drives many people crazy." In some communities, entire groups of individuals use the silent treatment to shun a member, to mark interpersonal distance against an individual who has breached some social norm.
Besides the particular situational setting, cultural context can also have a significant bearing on a silence's meaning. For a person to communicate with individuals from an unfamiliar society, she must not only be able to interpret the literal content of different utterances but also know the kinds of codes, channels and expressions [which are used] in what kinds of situations an ethnography of communication. In regard to silence, she needs to grasp what particular functions silence plays within that culture and to understand that different cultures have different interpretative norms for giving meaning to specific acts of silence. A lack of awareness of these norms can lead to significant misinterpretations of silence.
While a number of studies have been conducted on the meaning of silence in different cultures, the only major generalization that can be drawn concerns the divergent attitudes in high context and low context cultures. In high context cultures (such as Japan and Arab countries), individuals rely most heavily on how a statement is said rather than the content of what is said; in low context cultures (such as Germany and the United States), people rely primarily on the substance of what is uttered. While in high context societies, the parties rely a great deal on nonverbal communication and pay less attention to detail, in lower context societies, they focus on the words and literal meaning of the communication. Consistent with these broad definitions, researchers have found that while individuals in high context cultures unconsciously use silence in their everyday conversations to send "scripted" messages about their feelings, communicators in low context cultures do not have such embedded scripts in their communications to send subtle silent messages but tend to use silence strategically, making conscious choices of when to refrain from speech.
The ability to communicate well is obviously critical to almost every aspect of the lawyer's craft. Much of a lawyer's work is involved in dealing with people - listening to clients, developing rapport with them, handling them, persuading judges or opponents, and so on. The skills of the successful lawyer lay in mastery of the human interaction - how to listen, how to persuade, how to meet emotional and psychological needs of clients, opponents, judges, indeed, everyone they deal with professionally.
As many commentators contend, language itself is inherently indeterminate depending in large part on the speaker's and listener's context for its meaning. Even with those limitations, attempts are made to develop a variety of oral advocacy techniques that lawyers can employ on a context-specific basis. Similarly, this analysis of silence in the lawyering process strives to identify possible meanings that silences can have in their interactions so that they can determine, within the context of the particular communication, how best to use silence or respond to its use by their audience. While it can be argued that interpreting silences may be a more daunting task than deciphering words, the following analysis will show that a lawyer's comprehension of silences will assist her in communicating her messages and understanding those she receives.
In an initial interview of a client, a lawyer has a number of goals: (1) to form an attorney-client relationship; (2) to determine the client's goals; (3) to gather as much as the client knows about the facts; and (4) to reduce the client's anxiety without being unrealistic. Whether or not the lawyer is successful in meeting these goals depends in large part on her ability to make the client feel comfortable, to encourage the client to communicate freely, and to remove inhibitions to communication, such as authority, cultural, psychological, or social barriers. Her capacity to respond to and use silences is essential to each of these skills.
As demonstrated earlier, pauses and hesitations can actually be very helpful to a speaker in communicating her message. They can aid her in becoming more aware of what she is saying; they can encourage her to explore her thoughts and feelings; and they can assist her in fine tuning her utterances. In many interviews, especially in their initial stages, the client's pauses and hesitations serve these functions. If, for example, she is embarrassed to discuss her problem with a stranger or fears the attorney as an authority figure, pauses and hesitations can give her time to become more comfortable with the setting and explore her feelings. If she is experiencing uneasiness in confronting the fact that she has to handle this legal problem, these silences can assist her in coming to grips with the fact that she cannot avoid her situation. If she is uncertain as to her memory of the particular events, pauses and hesitations can help her clarify her memory.
To use pauses effectively, however, a lawyer must overcome the popular misconception that silence is a failure in communication. As described previously, speakers feel a pressure to talk and fear that they will be considered inadequate as communicators if the discourse does not flow. Listeners feel uneasy, unsure of what the speaker is trying to say, and impatient to hear her thoughts or feelings. Pressured to talk, the speaker may not sufficiently process her thoughts and feelings and may not communicate her full message; impatient to hear more information, the listener may fill up the silence with her own talk.
Lawyers need to overcome their discomfort with pauses and hesitations in discourse and their desire to rush along the flow of the interview. Especially at the beginning of an interview, a lawyer needs to be sensitive to the possible barriers between the client and herself and should view pauses and hesitations as opportunities for the client to reach his own comfort level, not as a failure to move the interview. She should avoid filling in the spaces with rephrased, probing, closed-ended questions or, even worse, attempting to complete the client's thoughts. Instead, a lawyer should allow the client to continue speaking either by maintaining and using her own silence, non-verbal facilitators (e.g., nodding or leaning forward), or words of encouragement.
When faced with a client who is unable to remember key facts, to make up his mind about a course of action, or to decide whether or not to enter into a retainer agreement, lawyers tend to want to ask more questions; to try to clarify points; or to probe further. Although these techniques can, at times, be very helpful, too much talking can actually be distracting for the client. It can deter clients from drawing their own conclusions and can discourage them from freely expressing their thoughts and feelings.
The lawyer should let the client know what information is sought; what work the client has to do; or what specific issues must be decided. She should also give the client a message allowing him to take the time to reflect about the information required or the decision to be made. If possible, the interview should be recessed for this purpose.
Lawyers need to be clear in using silence as a tool for encouraging reflection lest the client start to feel anxious. If the client does not understand that the lawyer's silence has a purpose or feels that the silence has gone on too long, he may feel embarrassed, unsure whether the lawyer is floundering; whether she even cares about his problem; or whether the lawyer disapproves of something he said. Counseling literature is replete with suggestions as to the proper length of time for such silences: three to six seconds; up to fifteen seconds; or four to twenty percent of a two-minute segment of the session. The appropriate time for these silences will depend on the context of the situation: the complexity of the issue involved; the comfort level of the client; the success of the client in remembering information or making a decision; and any looming time pressures. The client's nonverbal cues, reflecting either concentrated thinking or uncomfortable fidgeting, should give the lawyer some guidance regarding when to move on with the session.
Often in the midst of an interview or counseling session, a client will communicate her feelings and thoughts with deep silences. A battered spouse in a domestic violence case, for example, might interrupt her description of her partner's abusive conduct with a silence reflecting the immensity of the pain she feels. A widow, recovering from the recent death of her husband, might have great difficulty discussing the distribution of his estate because of her grief. In the midst of the litigation of a case or the transaction of a deal, a totally unforeseen event might occur that radically changes the status of the case or the relationship of the parties and has a deep emotional impact on the client: a significant motion may be granted or denied; property sought to be acquired by the client may be condemned; or an unanticipated eviction notice may be served. Stunned by such events, the client may be left speechless.
Recognition of deep silences can be helpful to a lawyer in several respects. In terms of rapport, an empathetic response to the emotions reflected in the silence can strengthen the lawyer-client relationship. Even if the lawyer believes she would not have the same feelings in similar circumstances, she cannot ignore the impact of the experience on the client. At the very least, when faced with a deep silence, a lawyer should not embark immediately on probing, informational questions. She might want to engage in "active listening," mirroring the feelings with a reflective response, such as "You must feel real grief about the death of your husband," for the widow left speechless discussing his estate. Especially in cases when the client is obviously distraught, the lawyer might merely join the client in her silence. Since the client feels that his experience cannot be verbalized, these circumstances may not be the occasion for the lawyer to display her wonderful verbal skills. In fact, the lawyer's own deep silence may be the most appropriate message to the client that she understands his emotions.
In regard to information-gathering, such silences can be very important to a complete understanding of a case. They may indicate areas for fact investigation. If, for instance, in a sex discrimination case, a client's account of her interactions with a particular co-worker is punctuated with long silences, an inference can be drawn that possibly emotionally-laden issues exist between them. The silence may only mean that the client wants to protect a friend from becoming involved in the case or that she fears that the co-worker will not corroborate her story. But it may also suggest that the co-worker was involved in the discrimination and that the client has great difficulty describing her experiences with him. These silences then may call for further sensitive questioning of the client or interviews with other witnesses to the interactions. Deep silence may also suggest the need for the client to reappraise his strategy in a case. If, for instance, he reacts in prolonged deep silence in response to an unforeseen circumstance in a hotly-contested case (e.g., an adverse ruling of a motion or a heated rejection of an offer), the lawyer may want to explore alternative strategies with the client.
Many lawyers, especially inexperienced ones, may interpret silence as assent. The popular notion in American society, and especially the talkative legal culture, is that silence signifies agreement. n208 If the client does not want to talk about the different options, the lawyer assumes that he is satisfied with the offer on the table and that there is no reason for continuing the dialogue. n209 But, as the review of the different meanings of silence has shown, a client's minimal response [*245] in a counseling session may actually be subject to a wide variety of interpretations: that the client is tentative about his decision and wants to reflect on it; that he is emotionally upset by the offer but cannot express his feelings at that moment; or that he simply wants to avoid a conflict with a lawyer he feels has ignored his interests.
A lawyer, then, needs to be sensitive to these quiet moments in counseling. She should not jump to conclusions about the meaning of a minimal response or nod. Especially with clients who have been disempowered in much of their lives, the lawyer should try to encourage the client to articulate her feelings to confirm the meaning of the silence. Often, it is helpful to ask the client to describe explicitly the bases for his decision. The client may pause or hesitate in his response, but the lawyer should give him the opportunity to reflect fully on his initial response.
For a lawyer both to interpret properly the meaning of a client's silences and to use silence effectively herself, she must have some broad understanding of the functions of silence in the client's culture. As discussed previously, different cultures can have significantly diverse attitudes toward the use of silence in given situations. Just as a lawyer can be severely disadvantaged if she tries to communicate without an interpreter with a client who only has limited proficiency in her language, interviewing and counseling a client from a different culture without any sensitivity to issues of silence can interfere significantly with the discourse. In an initial interview, for instance, a client from a culture where only limited conversation is the norm between strangers might be put off by a very talkative attorney. If that same client responds to probing questions with silence or minimal information, the lawyer needs to understand that the client may be marking social distance and that the development of a relationship may take more effort than lively colloquy.
The danger of jumping to conclusions is very prevalent when lawyers confront silences in witnesses' stories. Throughout the fact investigation of a case - either informal interviews or formal depositions - lawyers encounter a wide variety of silences in the different stories being told. The traditional law of evidence has developed some interpretive rules for some of these silences, many of which unfortunately jump to conclusions as to the meaning of the particular silence. One rule, for example, allows for silences to be interpreted as "adoptive admissions": When a statement is made in the presence of a party containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, failure to speak is considered an admission. Another rule of evidence is that if a written statement is given to a party and read in the presence of others, the party's failure to deny its assertions may be received as an admission, when under the circumstances it would be natural for the person to deny them if he or she did not acquiesce.
The goal of any lawyer in a negotiation should be to communicate persuasively with the other side. Negotiation is not just a series of offers, counteroffers, and concessions. Nor is it limited to the identification of interests, generation of options, and development of solutions. The energy that fuels both of these processes - what moves parties to concessions or mutual solutions - comes from communication about the parties' rights and powers.
Some lawyers, however, ignore this goal and instead seek to prevail in a negotiation by pummeling the other party with words. They assume that by the sheer force of their arguments and threats, they can force the other side into agreement. By ignoring the persuasive aspects of the negotiation process, they run the risk of inviting counterthreats, pressuring the other side into terminating the discussions, and damaging any ongoing relationships between the parties.
Productive communication in negotiation requires the ability to listen to the concerns of the other party and to try to convince it to change its position. Whether the lawyer is using an adversarial strategy (concentrating on obtaining concessions from the other side for the distribution of limited resources) or a problem-solving strategy (focusing on developing solutions that can integrate the resources of both sides), the lawyer's aim is to motivate the other party to make an agreement on terms as favorable as possible to her client. "Negotiation is not a monologue with the other party's lawyer as a passive audience. Rather, it is a dialogue in which [each lawyer tries] to persuade the other party to reach a mutually agreeable decision on issues."
