The expert witness and the art of listening

December 1st, 2018

By Elise Burns-Hoffman

There is a striking moment during the café scene in the movie Before Sunset (, accessed 1-11-2018) in which the leading actress Julie Delpy, playing the role of Céline, describes how her brain was ‘free from the consuming frenzy’ while living in the foreign and bland city of Warsaw – allowing her greater clarity of thought and a sense of peace. What she is describing is the insight into the reality of how we succumb so easily to the distraction and demand of various kinds of ‘noise’ in day-to-day life.

While it is perhaps possible to achieve a similar insight momentarily when on holiday or taking time out in nature, one seldom manages to maintain and practise such wisdom consistently when deep in the trenches of professional consulting; working to meet client expectations; adhering to deadlines and generally trying to juggle the various pressures created by the world of work.

Céline’s words resonated the moment I first heard them over a decade ago, due to the parallels that can be drawn with that which has the ability to interfere with the art of listening in expert professional consultation.

If one starts to pay closer attention to the default manner of listening, many of us may surprise ourselves in observing how much of the time less listening is taking place, but rather more waiting to reply; formulating the next question; moving on with the assessment process and/or adding a personal view of some kind. Although this is a commonly expressed notion, the practice of changing the habit continues to fall short far too often.

The avoidance of sliding down the slippery slope of inadequate listening, and into the bowels of the ‘frenzy’ of the working world, relies on the practice of daily mindfulness.

The work of an expert – in my case that of the incapacity; disability and skills transferability specialist –  requires various types of listening in order to deliver the factual information gathered and provide a professional opinion in such manner as to stand the test of further discussion, debate and/or interrogation robustly. These include listening with one’s head; heart; eyes and soul – namely, a holistic approach.

Expert work also requires an intimate understanding and practice of communication, which constitutes the application of a great deal more skill than simply speaking to somebody, while documenting their response. Communication is a mutually receptive and appreciative process during which mindful engagement is required to ensure that what has been said is what is being heard and understood.

When we become consciously aware of our personal and professional filters, in addition to being able to identify when the tendency towards impatience; desensitisation; temptation to miss the subtleties of non-verbal communication, the underlying narrative and/or the importance of detailed factual accuracy, we are able to listen more constructively and positively and communicate more effectively.

The pace of today’s working world, in which instant messaging, 24/7 channels of (often poor) communication, copying others on superfluous e-mails, making use of sound bites instead of conversation, limited tolerance for that which requires more time than is comfortable etcetera, runs the risk of negative interference in the expert assessment process.

I have lost count of how many times over the past 30 years the individual presenting for an assessment has made the observation that it was the first time anybody had taken time to truly listen to their full story. Whether their comment regarding it being the first time someone took time to listen is accurate is not important. Instead what is important is the vital role listening and communication has played in ensuring that the individual feels properly heard, and their human dignity honoured.

Of further importance is the perception of the individual of those who have referred them to the expert concerned. Irrespective of how specialised the professional may be, unless the assessment process has been positive, and left the individual’s unique sense of humanity feeling intact, the referring party could be tarred with the same negative experiential brush as the expert.

Just as I have lost count of the number of times I have received feedback regarding the upside of being heard, I have also lost count of those who have shared their experience of the downside of having not been. This never bodes well for the referring party.

Although experts are aware of their independent, objective and unbiased role, as they relate to the referring party, the person being assessed does not necessarily experience the referral in the same way and experts are often seen as an ‘extension’ of the organisation via which it was made.

A few basic rules in the expert rule book ought to include the following:

  • Make sure the environment in which the assessment takes place is as comfortable, pleasant, accommodating and as free of distractions as possible. This may require seeing the individual in their home environment, rather than the rooms of the professional, something some experts decline to offer and in so doing may influence the accuracy of the opinion provided.
  • Give your full attention to and focus 100% on the person being assessed for the entire duration of the assessment. The availability of time is required, including the need to limit one’s booking schedule accordingly.
  • Be mindful towards the understanding of the answers provided and be sure to obtain clarity by summarising and asking for more information when indicated. The need for further information can sometimes extend to making further telephonic contact with the individual or others following the assessment.
  • Be aware of one’s presentation; the verbal and non-verbal language used, along with tone of voice and the responses given. There ought to be no limitation on empathic listening simply because the assessment process is objective and once off in nature.
  • Keep your mind clear of the temptation of preconceived ideas; personal and professional filters, as well as picking up on cues that indicate the need to adjust the assessment process when necessary.
  • Complete the expert report within a reasonable time frame following the assessment in order to ensure that no observation; factual information and/or subtleties noted become ‘lost in translation’ due to substantial time having passed.

As simplistic and obvious as the above basic rules might appear, it takes conscious listening; clarity of thought; avoidance of distractions and sustained focus to ensure that one hears each individual’s story and personal journey with a fullness of presence, every time. A clear brain, as noted by Céline, is the tool of choice.

When experts fail to listen with conscious intention they fail the individual concerned; the referring client and the court.

While the above-mentioned basic rules apply as much to the referring lawyer as they do to the expert being briefed, a few extra listening tips that may be helpful to those in the legal profession are as follows:

  • Adhere to the appointment time; turn off your mobile telephone; avoid the temptation to look at the time; demonstrate receptive body language and make regular eye contact throughout the consultation. These are all signs that illustrate respect for the client and enhance their sense that you are listening.
  • It is helpful to remain mindful of the fact that the issue under discussion is about the client and not you. What the client wants is for you to hear and understand their story and to feel that you care. Your legal knowledge, experience and expertise are taken as given; there is no need to impress the client with your history in this regard.
  • Although the client has approached you to assist with the provision of a solution to their legal problem, providing answers too soon into the discussion can create the impression that you are not listening and are rushing to the finish line. It is only when the client feels that you have fully embraced their situation that they feel ready for the suggested way forward.
  • In spite of the truth that clients may not always ‘like’ what they hear in your considered response to their issue, honesty – as always – is the best policy. What is required is to have engaged on a sufficiently human and empathetic level to have determined how best to deliver information that may be disappointing to the client. Prefacing your response with an acknowledgement of what you have heard and recognition of their expressed feelings is recommended.
  • Just as the author, Gary Chapman, described the importance of couples being aware of their partner’s love language in his book The Five Love Languages – How to Express Heartfelt Commitment to your Mate (North Field Publishing 1995), so too must the preferred method of communication and on-going contact be discussed with your client. The reality of the slowness of the wheel that turns in the legal profession seldom marries well with the reality of the sense of urgency to reach resolution experienced by your client. Regular contact with the client is required in a suitable manner that ensures their ability to relate on a cognitive and emotional level to these realities.
  • Perhaps the easiest way in which to enhance your listening skills as a lawyer is to live by the rule from the Holy Bible in Luke 6:31: ‘And as you wish that others would do to you, do so to them’ – remembering that the lawyer/client relationship is no different to any other insofar as we all seek and need connectedness, recognition and reassurance that our lives matter.

Elise Burns-Hoffman BSC (Occupational Therapy) (UCT) Higher Certificate in Law (Unisa) is an Occupational Therapist, Disability and Incapacity Consultant, Personal Business Coach and Certified Mediator at Burns-Hoffman Consulting in Cape Town.

This article was first published in De Rebus in 2018 (Dec) DR 24.

De Rebus