What if a lawyer from a modest financial background is working with relatively wealthy clients for the first time? What if a commercial litigator at a large firm takes on a pro bono project interviewing kids in juvenile detention? What if a young female lawyer is representing an international client with a serious legal problem and a seriously sexist attitude?
These are just a few examples drawn from my own experience. The common thread is cross-cultural competence. One might also call it cross-cultural literacy or cultural consciousness or simply cross-cultural lawyering. Whatever you call it, it’s a really big topic.
The culturally competent lawyer is one who can work—effectively—with clients, co-workers, judges, and people in general from a wide variety of ethnic and cultural backgrounds.
There’s no such thing as “culture-neutral” lawyering; debunking that claim is a beginning point in the landmark 2001 publication of Susan Bryant’s Five Habits: Building Cross-Cultural Competence in Lawyers. Differences in cultural backgrounds affect many aspects of the lawyer’s role, even as seemingly simple a lawyer’s request to a client that the client ask for clarification if the client doesn’t understand something or the lawyer is not being clear. Those two different ways of phrasing the request may generate different reactions—or what seems like non-cooperation—depending on the client’s background. Cultural competence connects with core professionalism requirements such as competence and communications, as this Oregon Bar article points out. Lack of cultural competence could also cost a firm in terms of employee and client retention.
In this post, I will briefly summarize the “five habits” framework developed by Bryant and Peters. (They refer to teaching law students, so that is the terminology used below, but obviously the concepts are meant to apply far beyond the walls of any law school class.) At various times this year, the blog will highlight related articles, ideas, and practical recommendations.
Habits One and Two
The beginning of the five habits requires thinking about similarities and differences with clients—not just what those similarities and differences are, but how the process of thinking about them affects the relationship and the law student’s effectiveness. How can a law student find similarities with a client from a very different background? What if a law student identifies as so similar to a client that she misses other important differences?
More broadly for analyzing and managing the client’s case, how do the similarities and differences affect interactions between the client, law student, and judge (or other decision-maker)? How strong is the client’s legal claim, and can the law student shape the legal argument to encompass more of the client’s claim and situation?
When a law student and client come from different backgrounds, the student may miss what the client is intending to communicate. And nothing hurts communication more than the illusion it has taken place (said George Bernard Shaw). The student may believe the interaction is productive when in fact the student is negatively judging the client. Maybe the client even senses that judgment and withholds information accordingly. Maybe the lawyer later finds out that the client has in fact not shared all the relevant information.
Part of the cure for these problems is “parallel universe” thinking in which the student looks for multiple interpretations of the facts. The point is to reach a deeper, less judgmental understanding of the client’s perspective and actions.
Communication is a huge part of cross-cultural competence. Thus, students should think about “pitfalls and red flags.” One pitfall is the problem of “scripts.” Scripts are habitual templates lawyers may use in repeated situations. Rather than using scripts, students are encouraged to bring out the client’s own story with attentive listening and to gauge the client’s own sense of engagement and understanding. (Here I will note the connection to Ken Grady’s exploration of how lawyers are prone to rely on mental shortcuts just as much as non-lawyers.)
Red flags would include signs that real communication is actually not taking place, such as a client who tries to dominate a conversation or another one who withdraws and takes no notes. Law students have to overcome their sensitivity and move past communication challenges; they need a “broad repertoire” of communication skills for gauging clients’ understanding.
The final habit is the most difficult, which is why Bryant and Peters place it last. It asks students to confront their own biases and stereotypes, an uncomfortable process to say the least. To develop this habit, students can “create settings in which bias and stereotype are less likely to govern.” Because people are more affected with bias when they are under stress, Bryant and Peters encourage law professors and students to proactively address stress. Professors can “promote reflection and change of perspectives with a goal of eliminating bias.”
Communication skills are critical
Communication skills run throughout the habits. For example, “remaining present with the individual client is an essential part of cross-cultural competence.” More specifically, good cross-cultural lawyers have to be good listeners:
Intercultural communication skills include deep listening skills and capacities to focus on content rather than style, the ability to read verbal and non-verbal behavior, and the ability to adapt conversation management behaviors and style. These are communication skills that lawyers need in every situation and more so in cross-cultural situations.
The original Five Habits paper is now 15 years old. Bryant and Peters have collected a wealth of materials here at LegalED, including resources on listening. The discussion of cross-cultural lawyering has continued vigorously, with a recent burst of work on implicit bias.
In this blog’s continuing exploration of additional articles, ideas, and recommendations, the goal will be what Ascanio Piomelli wrote in 2006, surveying the field of teaching about cross-cultural lawyering:
[C]ross-cultural materials are at their best . . . when they spark generous curiosity, nurture engaged, nonjudgmental inquiry, and foster real connection with others.