From a strictly legal perspective, the term “hearing” may have a distinctly positive or negative ring, based upon the case and context in which the term arises.
For criminal defense counsel, a “hearing” may represent the opportunity to shield clients from potential criminal liability by successfully establishing a lack of competency to stand trial. According to expert witnesses—and, eventually, the court—do clients lack the capacity, as a result of some verified mental condition, to appreciate the nature and consequences of the criminal proceedings at hand? Do they also lack the capacity to participate rationally in their own defense? Either incapacity will suffice. A finding that clients are both incompetent and not somehow “restorable” to competency can, in some cases, vanquish the specter of criminal charges for good and make more palatable whatever psychiatric treatment the court may subsequently impose.
In civil matters—and of course it is axiomatic that such practice is often anything but “civil”—it may be that each successive “hearing” constitutes a grim reminder to the defense team that despite their best efforts this case has simply refused to go away. What about summary judgment? According to a recent article published by Dr. Mark Fotohabadi in the ADR Times , the most fertile ground for this approach is that staked out for “Title VII and employment,” in which summary judgment is “granted in whole in 49.2% of cases.” In the other half of such matters, civil defense counsel trudges wearily forward and may be throwing good money after bad with waning hopes for a profitable outcome. “Great, another hearing … but is anyone really listening?”
In a scientific sense (not to be confused with the five human senses, of which hearing is just one), “hearing” and “listening” are considered distinct matters as well. Hearing, which is essentially a form of signal detection, is just the first of a series of events comprised of “perceiving, understanding, and remembering language,” as addressed in a review article that was co-authored by psychologist Jerker Rönnberg at Linköping University in—surely you’ve heard—Linköping, Sweden. None of our finely tuned mental apparatus, however, is likely to come into play if no one is listening. Similar to the fate of the one hand that claps and the tree that falls in the woods, the most exquisitely crafted final summation will fail to register if the jury isn’t beguiled into paying attention once the curtain rises.
Hearing is a notion that comports handily with guidance proffered by the “National Task Force on Lawyer Well-Being” (the “Task Force”), an entity “conceptualized and initiated by the ABA Commission on Lawyer Assistance Programs (CoLAP), the National Organization of Bar Counsel (NOBC), and the Association of Professional Responsibility Lawyers (APRL)” and made up of several other “participating entities” from within and without the American Bar Association.
The Task Force has identified six pillars or “dimensions” that combine to “make up full well-being for lawyers,” one of which is the “Physical” dimension, expressed in part by “seeking help for physical help when needed”. Predictably, and as is true of so many other potentially problematic conditions, waiting until we notice substantial auditory deficits on our own is not the best strategy.
With this in mind, we should acknowledge that preventive medicine isn’t always the top priority of those practicing medicine. According to Katherine Bouton—President of the New York City Chapter of the Hearing Loss Association of America, and member of the Advisory Council for the National Institute on Deafness and Other Communication Disorders (NIDCD), a branch of the National Institutes of Health—“negative effects of untreated hearing loss are well-documented,” including “a greater risk of falls in the elderly” “depression and isolation,” and “cognitive decline.” In an article for the American Association of Retired Persons (AARP) entitled “One Test Your Doctor Probably Isn’t Doing”, Ms. Bouton wonders aloud “should hearing screenings be a part of your routine physical exam?” and advises that since such measures are typically overlooked, “you may have to ask your doctor for a hearing screening,” although she continues to maintain that “patients shouldn’t have to broach the subject.
