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Today we’re talking to Professor Katherine Kelly from my alma mater, the Ohio State University Moritz College of Law. Katherine teaches legal analysis and writing and she’s responsible for the law school’s bars exam support services.
Now when I say bar exam support services, what I really mean is that she helps students who are freaking out about the bar exam. So for those of you who don’t know, the bar exam is a 3 day long, 15 hour hazing ritual that all lawyers must go through in order to practice. Needless to say, a significant portion of her job encompasses managing people’s emotions while persuading them to adopt a specific course of action.
Here are the things that I want you to focus on throughout the interview. We discussed the importance of body language in these conversations. We also talk about how to build trust. We also discuss how to be empathetic and emotionally aware and lastly of course, we talk about how we’re able to persuade these people to take the right course of action. So without further ado, let’s jump into the interview.
Katherine, thanks for being here – welcome to the show!
Thank you for having me!
Let’s start off this interview with a little bit of your background – can you tell us a little bit about yourself and what you do?
I am an associate clinical professor of law and director of academic support at the Ohio State University Moritz College of Law, I’ve been here about four and a half years now. And in my role at Moritz I teach two first year classes in legal writing analysis and research, and then I also teach a third class on advanced analysis skills, and that’s geared towards the bar exam which is the licensing exam that’s required to be an attorney to practice law.
And as my role in director academic support, I work students to prepare for the bar exam itself. And the support that I provide, it’s not about teaching the test because law students are smart and they have the knowledge. That’s the easy part. What I do is help develop strategies to manage your time, strategies for managing the massive amount of material that students are responsible for learning, strategies for managing fears and anxieties, dealing with the unknown because the big fear comes out of the unknown and the unexpected, so we prepare for that. So in a nutshell that’s what I do here at the law school.
I’m laughing to myself because you described the bar exam as a licensing exam – I think of it very differently because it’s more vivid in my memory because it wasn’t that long ago.
The bar exam is the one experience that every attorney shares, and it is a very high barrier to entry at a very late stage for people who are not attorneys.
Other professions have barriers to entry, other exams, but they’re much earlier in the process and the pass rate is very high in other professions. And so the bar exam is after you’ve finished everything, and you can’t even get a job or practice as an attorney until you pass this exam. And the pass rate is in the low 80’s or upper 70’s, so you’re looking at a chunk of people who are not going to be able to have gainful employment unless they pass this exam. So it’s a little bit scary! But that’s where I come in.
Right. And so the average is high 70’s and then what is Ohio State’s average?
Well our average is in the 91, 92 percentile for first time takers. Of course we have the highest pass rate in the state of Ohio, and it is about 10 percent over the state average, so our graduates do exceptionally well on this test.
Nice, well I think you deserve a little bit of credit for that!
I remember when I was taking the test, that fact, even though it should have given me a lot more confidence that I went to this school and I should pass because 92% passed – it made me more scared because I was like – what if I’m in that 8 percent? That would make me feel really bad! So that kind of gives people an idea of the emotional state that we’re in.
So when it comes to teaching them the strategies that they need to manage their time, fears and study – how do you help them to manage their emotions? Or if somebody just received bad news, they just received news that they failed, or they’re stressing out about their circumstances – what is your role? How do you work with them?
There are people that don’t pass the bar exam, and people don’t pass basically for one reason and that is because they don’t prepare. And that sounds kind of crazy, why wouldn’t you study? And there are a variety of reasons why people don’t adequately prepare.
A lot of that has to do with the fear of failure, and that also sounds weird – if you’re afraid of failing why are you going to fail? When you’re afraid to fail it’s because you’re afraid to give 100% of yourself, because you’re afraid that you might not be good enough.
So you look for external reasons – It’s not you, you didn’t pass because you didn’t study so it’s not personal. You kind of disconnect from that, and I set that up because it’s part of the reason, I have to know why you failed in order to help you pass the next time. And that bad news, it is devastating, and up to this point, your whole life has been geared toward this.
And Kwame you know how you felt when you passed, just the rush of emotions and relief and excitement that you felt. And it’s the opposite when your name is not on that list. No one likes that to happen, I don’t like it when people fail the bar exam. I can predict pretty accurately who is going to pass. I don’t like that I know the names that I’m not going to see, but I will say I’m a lot better now at dealing with that bad news and that person than I was when I started. Because no one likes bad news.
I used to hem and haw, I would try to make it not so bad – and this actually made it worse when I would be talking with this person, because they knew I was uncomfortable, that made them uncomfortable and it was just extremely awkward. And I had to step back and say – what can I do to deal with this? And I realized that I wasn’t preparing for this, so I was acting like the person who didn’t prepare for the bar exam. It was bad news so I avoided dealing with it.
So I learned that I had to process it myself in order to help someone else deal with this news. So if I want students to move forward and be successful, then they have to trust me and know that I have solutions that will help them. And so what I did – I’m a lawyer, when I’m faced with a problem, I research it. I search for a solution – and I went to the medical field because I thought, oh doctors, they’re experts in delivering bad news! So I’m going to see what the medical schools do.
And they teach and prepare their medical students on how to do this. So I looked outside my field and I pulled basically to key points from that for myself. One was to be genuine and one was to be clear. Being genuine, I mean being authentic, treating the person with respect, empathizing with them. You need to be able to relate to that person, I can put myself in that person’s shoes.
And that is helpful because when someone receives bad news, they failed the bar exam, they feel utterly alone and no one else understands. And if I can empathize and be real with them, they come out of that aloneness and realize there’s somebody else who gets what I’m going through. And then being clear – they need to know the information. And they’re looking at me not only to give them information, but to be a source of strength, to be that support. So I have to straightforward, professional.
You can’t say, ‘that’s horrible, that’s the lowest score ever’ – that’s too straightforward. But I can’t beat around the bush. You did not pass the exam, you cannot appeal your score. No, this is not a mistake, your option is you need to take the bar exam again. I’ve learned that those are the things I have to be very clear about.
Can I appeal this? Do you think they’ll recount my score?
No – I used to say, well, there’s a small chance – no, there is not a small chance. So I have to let them know that this is the bad news, you have one option, and that is to take the test again. And so in delivering that news, it’s kind of being tough, but being soft at the same time.
Wow, there’s so much good stuff that I could go into here. I’ll just go chronologically in what you’ve said. You said early on, people would be able to tell that you are uncomfortable with the situation. What vibes do you think you were giving off to let them know that you are uncomfortable, which obviously had a negative impact on your ability to deliver the message?
Definitely body language. And for me, I would not make eye contact. And I know this about myself, when I’m not comfortable with the situation, I tend to look up in the corner of the room. I know that, and I’ve practiced just preparing to give presentations or anything, it’s always a good idea to get feedback from people and I got consistent feedback that they could tell I was uncomfortable because I’d look up. So I knew that I was doing that.
If we were meeting in my office, I realized that I would be kind of squirming in my seat. Women have something called a power stance that we do to show that we are in charge and powerful, and you can be standing or sitting. I need to be sitting up in my chair, making that good eye contact, not slouched over, leaning over, looking somewhere. Hands in front of me on my desk, and really physically engaged with the person knowing that they are the most important person around even if it’s only a one on one conversation. If my body isn’t squared with theirs, then they know that I’m not focused on them.
In my word choices, that comes back to that clarity. It’s ok to pause and think but “um, well, you know, I guess” – those are stall tactics and they’re pretty obvious and they’re not professional words. And I don’t care if you’re talking about the bar exam or in any business environment, you need to use – at Moritz we use the term, “phrase that pays”. Those are the words that matter, they’re professional words and you need to use them. We don’t go “gee, golly, ya, I don’t know,” you need to be that professional so that person knows you’re the expert and they can trust you and listen to you.
I love this, this is really great, because body language is huge. And have you seen the Ted talk by Amy Cuddy?
I don’t think so – I’m writing it down though!
It’s a really great talk. Her background is in psychology, and she was talking about what she called power poses, and how taking different stances and taking up more space not only makes people more confident in you, but also makes you more confident in yourself. Because your body actually produces more testosterone when you are sitting in a position that takes up more space, which allows you to speak with more confidence.
I don’t remember much more into the psychology and physiology of the science behind it, so I’m just going to stop there! But I know it actually has a physiological and a cognitive effect on your perception of the situation and yourself. So positioning yourself well is important.
Another thing you said was when you say ‘um’ or something like that, the equivocation is huge. One of the people in my negotiation seminars one time said – hesitation breeds mistrust. I said, that’s brilliant! You should be teaching this! But it’s true.
But there’s a difference, I would say, between hesitation and pausing. And sometimes I think that as Americans we do things very quickly and very fast and we are uncomfortable with silence, so we want to fill that silence, but we shouldn’t. because what we think is an hour is 2 seconds and we need to get comfortable just taking that second instead of “blah blah blah” in that second.
So take a moment to gather your thoughts and then say what you mean and make it meaningful, instead of just blithering on.
That’s a good point, and it’s an important distinction too, because sometimes you rush, you make mistakes. And mistakes are hard to fix especially in these touchy situations. So taking time intentionally is very, very important to do.
One thing you said as well was you would prepare for these conversations. So what would that preparation entail?
For me that preparation is personal. I know the individuals that I’m dealing with because they’re students in the school, or I do work with individuals from other schools but I’ve been introduced to them by someone else. So I can think about that person individually, and what they’re feeling and how they might rebound from this and what they need. And an example I’ll give is a graduate of Moritz 2012 who also happened to play Division One football.
And I know what this particular person did to prepare for the bar exam the first time – not that much – and was not surprised when he did not pass. But I also know that he is an athlete at a very high level. And the way that I am going to speak with him and deal with him, I’m going to reach him on that level, because I can say, “Let’s do it, it’s time to suck it up. You can work hard, I don’t want any excuses – it’s game time.” I can say that to that individual.
I’m not gonna say that somebody who, I’ll give another example, who’s wife was very ill about 6 weeks during bar study and the person decided to go ahead and take it again. I’m not going to say, suck it up to that person because I know what their experience was. It’s going to be a little gentler. But I try to connect with each person individually and not just generically. I have a special education background, so my whole life has been that formulas don’t work, we need to work out an individual plan.
And so that’s basically my philosophy in how I deal with everything – developing that individual plan from the formula.
I really like that because it shows that you’re willing to customize your persuasion strategy for the person that you’re dealing with, which is key. It’s really important because a lot of times people try to use that the exact same tactic every time, maybe because it worked the first time. But it doesn’t work that way with everybody else.
Right, and I think that there’s a basic foundation. It’s not that you have to reinvent every single time for every single person, that’s pretty much impossible. But you have a foundation, I use the word “framework” – it’s not a formula, it’s a framework. It’s something you adjust depending on the situation and the audience. That is the same here, there are certain foundational concepts that are the same, but how you use them depends on who’s in front of you.
I love it. You mentioned earlier – trust is going to be key when you’re dealing with somebody in this kind of emotional state. So what were the kinds of things that you did to build trust with the people?
Trust is absolutely key because that person is going to rely on you. And I used to really push my credentials, I’ve been doing this a long time or here are my stats – but I’ve learned that the words are a little bit meaningless, you have to back it up. And I will say I got that idea a couple of years ago from an article in Sports Illustrated. It was about on OSU’s football on the path to winning the first ever college championship, and how the team was able to overcome all of the perceived setbacks – broken wrists and two or three quarterbacks getting hurt in the season. And it really came down to coach Urban Meyer adopting this philosophy called E + R = O, which is event + response = outcome. And you can be the greatest coach in the world, but if someone doesn’t trust in your ability you’re not going to be able to push them very far.
So by demonstrating my competence and my ability to help someone and how I respond to a situation and how ‘here’s what the outcome is’; then that person will trust me and come on the journey, because it really is about how do you respond to the situation. And they need to see how I respond in a competent and professional manner instead of just saying, ‘I’m the expert’ that isn’t enough. That person has to see it and feel it, and part of that trust comes from holding them accountable.
People will come in and they failed the bar exam and they’re upset and there’s a lot of external blame, which is very typical in any bad experience. They don’t like the outcome, so they’re going to blame the event for that outcome. External conditions are never the reason why, they’re just not. It is how you choose to respond, and so I have to hold that person accountable after they’ve used every excuse in the book – okay, now let’s talk about this. How many practice questions did you really do? How many hours did you really study?
That trust comes from that tough love. There’s a lot of balancing, so I’ve got to be nice and understanding, but then I have to draw the line and say ‘okay – let’s talk about this for real now. You submitted one practice essay out of ten – okay. You did all of these practice questions and you never scored above 30% correct. Did you ever go over any of these practice questions? It’s starting to show them that I know what I’m talking about and I know what it takes to succeed and how we can move forward together to do that.
This is really good, and I think there are two things that I want to highlight here for the audience, because this is the one of the core themes that I keep going back to. One of the things you said is, ‘after you’ve heard all of their excuses’ – and I think it’s really important to dig deep on that one because you said after they’ve given the excuses. You didn’t jump in the middle of them and tell them why they’re wrong.
You’re like, ‘okay let me let you exhaust yourself. Tell me what you need to tell me, and now I’m going to ask you some questions.’ And the beautiful thing about that is you build trust by listening, so they believe that you see the value in what they have to say, and then instead of correcting them harshly you ask them questions. And you know where you want them to go with this logical path that you’re creating, and they can kind of get to a point where they can they convince themselves after they get that all out of their system at first.
That’s absolutely what I want and what they need. Not that I want them to think it was their idea, but I need buy-in. And something that I tell my students, whether it’s the first day of law school or bar exam, or anything in life – I don’t want you to do something because I told you do it. I want you to understand why you should do it, and then want to do it.
And in my head I am saying, I told you that you needed to study, I told you to do these practice problems – but I can’t say that. And I don’t want someone to tell me, they already failed, they know, they know they messed up. So they don’t need any more reminders, what they need is someone who is going to let them feel and process. You’ve got to let them go through that, you can’t hijack someone’s emotions and tell them how to feel. They’ll get there partly on their own but they need some guidance because you can be sad, you can wallow in self pity for a while, but then you’ve got to climb out of that pit.
So I’m going to let them feel sorry for themselves, but then you’ve got to stop. There have been times when I’ve said to someone, you’re going to pick a date, say Tuesday November 1st, and you’re going to stop your self pity, because you can’t let that go on. That process has to move forward, and sometimes you have to give that a little nudge. And what I’ve found is that when people know it’s okay to feel upset and be really angry, to blame – they get it out of their system and then they know they’ve got to put it behind them because they’ve got to move forward.
You can move forward when you’re upset or angry, but that’s a very heavy burden and I’d rather walk without that burden, I’d rather set it down, it’s a lot easier. That’s the mindset that we have to come to.
That’s really interesting. And what else is interesting to me is, for those people are listening to this late because it is almost the end of October. And then you would give them about two weeks or so to wallow was that right?
Well it does depend on the person. There are some people that I would give them… the Ohio bar exam results are coming out on Friday. When people don’t pass, I usually don’t hear from them right away and I’m not gonna reach out to them because I don’t know if they’re ready, so they will come to me.
And so let’s say that somebody calls me on Monday and we talk. I will give them maybe a week. Because we don’t have to start studying right away, but I know that the longer the negative emotions continue, you’re just digging a deeper hole and the longer it’s going to take us to get out of it. The reality of this particular situation, it’s a bar exam, it’s a test. Come on. You don’t need two weeks for this; this is not a diagnosis of an inoperable brain tumor. And I will put it in that perspective and I have said if this is the worst thing that has happened to you in your life then you have lived a very lucky life.
For the listeners out there who are familiar with law, who aren’t really getting the context, let me set the stage a bit better too. Because one thing you said is, you typically don’t reach out to them until they’re ready. And people might be wondering – how do you know if they passed?
Well let me tell you! This test is offered only twice a year in July and February. And the way you find out whether or not you passed is the Supreme Court writes a list and publishes it online, and everybody who passed is on that list. So anyone in the world can see at the same time you did whether or not you pastor not – so that’s an added layer of pressure.
And so for the people who don’t pass it’s not up it’s not a private failure, it’s public – so that’s why it hurts so much when you don’t pass the first time.
The public failure, that is what a lot of my students are afraid of. What will other people think? And my response to that is, let’s talk about that. Put yourself in that person’s shoes. If your best friend or your brother or your mother did not pass, what would be your first thought?
And 100% of the time, the student’s response to me is I’d want to make sure that they’re ok. Exactly – would you think less of that person? Of course not, I would want to make sure that they know that it’s ok. So I’m like – please listen to what you just said. That alleviates a bit of the anxiety ahead of time, even though it is that public failure, the people that matter to you don’t think less of you, they are concerned about your wellbeing. I even bring that out when people fail and they come to me. No-one is judging you, no-one. People want to make sure you’re ok, and they really have faith in you and believe in you, and want to make sure that you’re going to do this again because they know that you’re going to pass. So let’s take that public failure and turn it into a positive, and a support system.
That’s a really great example of a powerful open ended question, because with that question you had them walk through a different reality that they haven’t really considered. They essentially are doing the work for you, they’re telling themselves that it’s not that bad. That’s a great question.
And that’s because they have to do the work, I can’t do it for you. Believe me I would, I would love to, but really it comes down to you doing it and realizing that you can do it.
Let’s say if somebody doesn’t come to you. How do you know when they’re ready? I’m trying to figure out a way to generalize this to somebody who sees somebody in pain and they’re like – do I approach? Do I wait for them to come to me?
What are some signals that could help somebody in this type of situation make the right move without pushing too hard?
That’s a really good question. If I know the person well, I will give them the weekend and I will reach out on Monday morning. So the results come out on Friday, I will give that person the privacy for that weekend; let them talk to their family. And then Monday morning is when I will reach out, usually with an email.
If the person is here, because the individuals usually aren’t here so I’m not going to see somebody on campus. If they were I would go see that person face to face and say, I’m thinking about, come talk to me when you’re ready. So that would be the initial reach-out. If I don’t know the person very well, I’ll give it a couple more days. I think it’s similar to the grieving process when someone close to you has passed away. If it’s my good friend, I’m in that close circle, I need to get there sooner.
If it’s a coworker that I know I need to be in the second circle. If it’s just an acquaintance I can wait a little bit longer because the person is also still dealing with their emotions and if they don’t deal with you on a regular day to day basis, if they’re still feeling really raw and upset – I don’t really want to talk to somebody I don’t know, because I won’t be able to be myself.
In terms of the bar exam, I don’t ever let it go – two weeks is the longest that I’m going to let it go, because then it just starts becoming this downward spiral. So I think it does depend on the situation, but it often depends on the person. I don’t know if that really helps answer the question!
Oh it definitely does. The great part about that question is I was asking as much for me as I was for everyone else! Because I was wondering how you were going to handle that too.
But I think that’s a really good rule of thumb – the closer you are to somebody, the faster you should intervene and then give more space if there’s really more distance between you and the other person on a relationship level. That’s a really good rule of thumb.
I think all of us have experienced something bad in our lives, we’ve either been grieving, we’ve lost someone or just lost a job or something. And how many of us walked around saying, ‘someone please come console me, someone help me’?
We’re not asking specifically, but we want people to come up and say hey, how are you doing? I’m thinking about you. And if you can think about that experience in your own life, and it did make you feel better when somebody sent you a card and said, this stinks, I’m sorry, I’m thinking about you. Or even a text – hey, I’m thinking about you. That made you feel better, that’s what you wanted.
So while I wait for the person to come to me, if they don’t come to me I’m going to go to them because I know they want it, they just don’t know how to ask for it.
Yeah that’s a powerful way to do it too, because just simply saying – I’m thinking about you, reach out to me when you’re ready – the beautiful thing about that is that it shows that you care, but you’re not pushing your own agenda and at the same time it puts them in the driver’s seat. They feel like they have some control.
Yes, I was just going to say it’s about the control. You’re there when they’re ready. And regaining control is such a key to moving forward out of a bad situation, and that small gesture, it’s a start. And that’s what you need to have, you just need that little chink, you just need to get a little bit in there, give them that little sense of control in that small thing and you will build from there.
I love it – this is this is really great information! Usually it takes me probably like a month or more to post these episodes, I actually have two coming out this week, the last week of October. I’m trying to figure out when to post them but I was talking about the Rio Olympics like it was just happening, I’m so behind!
But I know we have some lawyers in the audience, so maybe I’ll post this Friday so they could talk to some of their people if necessary.
Yes, the results are coming out, Ohio’s one of the last states. New York and California are still hanging out there for a couple more weeks, but it’s coming!
Man, bringing back the memories – I didn’t say ‘good’ memories but ‘the’ memories!
What is one tip you would give to our audience that could help them to persuade more effectively in these emotional situations? If there’s only one thing that they can do to be better, what would it be?
It’s kind of the theme of what we’ve been talking. You want the person to feel empowered and in control of the situation, the process and the outcome. So empowering them to keep focusing on strengths – how they can regain control, how to address their weaknesses – not avoid them.
You have strengths, you have positive attributes. Empower them to motivate them. We all know in any realm, whether it’s law or business or education – generating a sense of accomplishment is what motivates people. So helping them find that control on that positive level is what’s going to motivate them to move towards success.
This is great advice. Thank you so much for this, I really appreciate it.
Well thank you for having me, this has been really fun actually! It’s going to be me for the next couple of days!
Kwame Christian, Esq., M.A. Negotiation Consultant and Negotiation/Persuasion Coach
Keep listening to the podcast, Negotiate Anything, to learn the keys to confident communication, negotiation, influence, and persuasion.