Category: Diversity

CollaborationCross-cultural communicationDiversityEmotional intelligencemindfulness

Today is the International Day of Listening

Today, September 20, 2018, is the International Day of Listening. This event, now in its third year and sponsored by the International Listening Association, aims to promote listening benefits and practices in a variety of ways, encouraging people to:

  • Become more aware of the importance of listening
  • Listen to each other better
  • Gain awareness on their listening behaviors

The theme this year is “Listening—even when you disagree.” Personal activities you can do to observe the International Day of Listening are suggested on the International Day of Listening website. Legal professionals who have 30 minutes at lunch may want to talk to a trusted colleague about their effectiveness as a listener. Or take 20 minutes for a meditative listening walk.

The International Day of Listening has broader aspirations than helping lawyers recharge their batteries by listening to nature, collaborate effectively in the workplace, and do an excellent job representing individual clients—although all of these are excellent goals and high on the priority list for this blog. The International Listening Association’s broader aims with political dialogue raise far more difficult questions about listening and power. Part of a lawyer’s job is to listen effectively in difficult situations. All professionals in the legal industry should have experience listening in difficult situations. Ideally, these skills from the professional realm can serve beneficial purposes in public discourse.

DiversityGenderInclusionNon-verbal communicationResilience

‘Nanette’ is good

What’s the difference between a joke and a story? Hannah Gadsby teaches the difference in her new stand-up special Nanette. She brings up a lot of stuff going on in current political discussions in a funny, painful, compelling performance. You will get more out of it by listening not just to the “content” she’s written and delivered—and believe it or not, she has a funny joke early on about the idea of “content” itself. You’ve also got to watch Gadsby’s non-verbal signals, the wry smiles and fleeting, then burning, eye contact as she builds to her point.

One theme running through the show is Gadsby’s stated intent to leave stand-up comedy. She unrolls the reasoning a bit at a time, moving toward her central thesis: she’s got to tell her story, and comedy doesn’t let her do that.

Why not?

What better way to tell one’s story than with humor—specifically, with jokes? They make people laugh; they make people think.

Self-deprecating jokes are causing more hurt and Gadsby states her intent not to use them anymore:

“You do understand what self -deprecation means from somebody who already exists in the margins? It’s not humility. It’s humiliation.”

That’s one of many lessons about listening tucked up in her performance. If you hear someone using self-deprecating humor, listen more closely. Listen with empathy. Why are they doing that?

But beyond the content of the joke, Gadsby says, it’s the joke itself that is the problem. A joke has a two-part structure: First, the tension. Then, the punch line that relieves tension.

That structure is missing the third part, the rest of the story. Sometimes the rest of the story is satisfying, like when she came out to her mother (producing much joke material) and later developed a great relationship with her (happy but not at all funny). And sometimes the rest of the story is really painful, such that a comedian must ignore and suppress it to get anything joke-worthy at all.

So listening for more than a joke is one thing to take away from Nanette. Listening for a joke is a way to squeeze pleasure for yourself as a listener. Some audience members seem to get even more pleasure out of judging the jokes and offering “feedback” and “opinions” to Gadsby after her shows.

But listening for a story uses your listening to help the other person share and connect. How exactly to show you, as a listener, want the story not the joke seems like it must be drawn from intuition and empathy. If your listening skills suggest that all you want or all you can handle is a joke, you’ll never get the full story.

Asking questions certainly seems like a good start. Gadsby talks a lot about the unsolicited feedback she receives, but nowhere in the performance does she recount anyone asking her a question. In a way, the whole performance constitutes an exclamation by someone who has never been asked an open question, but only placed without her consent into certain boxes and stereotypes.

I’m still processing everything I took away from Nanette, and now I get it why someone said they were going to watch the show several more times. It’s not a spoiler to share the denouement, a clip of Gadsby on a sofa with her teapot and teacup and two dogs. After the work that went into Nanette, she deserves a moment to recharge.


Here are some other reviews of Nanette that may be of interest:

https://www.npr.org/sections/monkeysee/2018/07/02/625298708/hannah-gadsbys-nanette-is-a-scorching-piece-on-comedy-and-trauma

Hannah Gadsby on the Real ‘Nanette’ and Whether She’s Really Quitting Comedy After Her Netflix Special

https://www.vox.com/culture/2018/7/5/17527478/hannah-gadsby-nanette-comedy

 

 

 

 

 

 

 

 

 

 

Clinical legal educationDiversityGenderJudicial listeningLitigation

Beyond formal rules of evidence

Last year the Wall Street Journal wrote about problems with sleeping jurors. Brooklyn law professor I. Bennett Capers’ new article Evidence Without Rules, forthcoming in the Notre Dame Law Review, points out a much more pervasive issue: all the information jurors take in when they are awake.

The rules of evidence strictly limit what jurors can consider. They are have been “understood, and continue to be understood, as all-seeing, all-encompassing gatekeepers, checking all of the information juries may hear or see for relevance and trustworthiness.” Capers shows this view to be inaccurate and incomplete:

The assumption is that the rules are all-encompassing, unbounded. But the truth is far different. To be sure, the Rules of Evidence place limits on some of the information jurors hear and see, such as witness testimony and exhibits, the type of information that is formally announced and introduced as evidence by lawyers. Other evidence, however, passes by evidentiary gatekeepers practically unseen and unnoticed. Jurors use it to decide who was right and who was wrong; who committed a crime and who did not.

It is this other evidence that “breeze[s] unchecked” past the gatekeeping function of the evidentiary rules. And, Capers argues, “[i]f the goal of evidence law is ‘that truth may be ascertained and proceedings justly determined,’ then that objective is frustrated when outputs turn on improper and unchecked inputs.”

He gives three major examples pertaining to all the players in the courtroom—parties, witnesses, attorneys, and others:

  1. Their dress
  2. Their demeanor
  3. Their race

First, dress—for example, glasses, which can be used for a “nerd defense” but may also make white-collar defendants look more guilty. As to the role of glasses, the article left me actually speechless with a jury consultant’s advice: “savvy lawyers should spray a defendant’s glasses with PAM cooking spray so that the jury cannot see the person’s eyes, at least when the lawyer fears the defendant might come across as ‘shifty-eyed.’”

Second, demeanor—Capers points out that the lawyer can use nonverbal behavior to supplement or tear down testimony. It was this aspect of the paper that seemed most connected to the topics here on this blog. A lawyer’s demeanor can serve as a kind of “performative listening” that doesn’t just elicit testimony but gives some kind of statement in its own right:

Consider the lawyer who drums her fingers on the table while a witness testifies on the stand, or rolls her eyes or raises a skeptical eyebrow. Or the lawyer who quietly nods along at a certain point in a witness’s testimony. . . . They are in effect vouching for witnesses, or in the case of opposing witnesses, implying a witness is unworthy of belief. They are offering the equivalent of opinion testimony without themselves swearing an oath or taking the stand.

The way the lawyers sit aligned with their client or put a protective arm around the client is itself a form of opinion evidence, Capers argues—unacknowledged evidence that would violate Rule 404(a) if it were considered “evidence” in the first place.

Third, race—which connects with demeanor evidence but is of course much broader. As to demeanor, which has proven crucial in death-penalty juries’ deliberations, the impact of race makes jurors worse at reading faces: “Several studies have found that how jurors interpret facial expressions depends on the race of the juror and the race of the defendant; not only do we have trouble with cross-racial identification; we have trouble with cross-racial identifications of remorse.”

The impact of race also makes jurors worse at remembering the facts fairly:

[In one study,] participants invented aggressiveness when the actor was black, [but] actually failed to remember evidence of aggressiveness when the actor was white. In short, it is not only in cases involving minority defendants where race matters. Race also matters in cases involving white defendants, whom jurors are more likely to view as presumptively innocent, and cases involving white witnesses whom jurors deem presumptively credible.

Beyond these three factors explored in the articles, there is, of course, sexism such as jurors’ bias toward male experts as more authoritative, bias toward people with families, bias against the use of an interpreter, and male bias against overweight women. “Outsider accents” are viewed as less credible, whereas neutral and especially British accents gain extra credibility.

The question Capers struggles with is what to do about all of this. Given the almost impossible bar of overturning a jury verdict, even on evidentiary issues formally recognized as evidence, the basic effect is “What happens in the jury room stays in the jury room.”

And he points out that existing instructions may exacerbate the problem. Telling jurors to decide based on what they “saw and heard in court” may “giv[e] them tacit approval to consider anything they hear or see—including the dress of witnesses, or the presence of supporting family members, or the defendant’s demeanor even if he does not testify—so long as they do not consider as evidence anything the court explicitly prohibited, such as the questions of lawyers.”

Capers goes on to suggest a stronger admonitory instruction, phrased in concrete, plain language. He also suggests providing jurors with an evidentiary checklist of the witnesses and the documents. Capers’ suggestion here fits well within insights from cognitive science. For example, Daniel Kahnemann coined the phrase “WYSIATI”: What You See Is All There Is. Under WYSIATI, people rely heavily on affirmative information in front of them. Thus, an affirmative list of what the evidence actually is could direct attention toward the evidence actually presented and away from the natural tendency to fill gaps using other cognitive shortcuts.

Capers’ most radical suggestion is to redefine the scope of evidence itself. Under his proposed definition, evidence would include “anything that may come to a juror’s attention and factor into a juror’s deliberation.” The implications of such a definition seem vague at times. For example, he says that a rape victim’s clothing might trigger a 403 issue with the risk of unfair prejudice. But there is an aspect of personal autonomy in how people dress for court; if clothing could be prejudicial enough to trigger 403 then could it somehow come within the court’s discretion to order someone to, say, put on a sweater or take off a sweater? This reminded me of the incident from a couple of years ago where a weather reporter was asked to cover up, on air. And what should a judge do with flamboyant courtroom observers in high-profile cases, for example the Tex McIver trial that just wrapped up in Atlanta:

Capers answers most such questions by relying on detailed jury instructions. Footnote 153 in the article cites scholarship that instructions are not futile and do make a difference, especially when repeated and explained clearly.

I appreciated the realism at the end of his article, acknowledging a possible counter-argument: Why does any of this matter? Why shouldn’t jurors consider all that stuff, as they always have? Drawing on Critical Race Theory and his own professional and personal experiences, Capers out that dress, demeanor, race, and all those other factors are not neutral:

Who benefits from the status quo when we pretend dress does not matter, or demeanor does not matter, or the presence of family members does not matter, or language ability or up-speak or race or gender does not matter? Who benefits? And who does not?

Cross-cultural communicationDiversityEmotional intelligenceLaw schoolLegal education

Civil disagreement

In a recent Time editorial, Yale Law Dean Heather Gerken lionized the law school as a bastion of civil disagreement. She cited the uninterrupted speech of Charles Murray at Yale as an example of civility:

Law school conditions you to know the difference between righteousness and self-righteousness. That’s why lawyers know how to go to war without turning the other side into an enemy.

A student group collectively responded, arguing that Gerken mischaracterized their protest during Murray’s visit to Yale and suggesting limits on law’s social and political influence:

If anything, our legal training has taught us that civility has its limits, and that disruption, creative protest, and rule-breaking are valid and often necessary tactics to effect change.

Amidst this debate and much, much more, a new class of law students is arriving at law schools across the country right now. Thus I was grateful to hear some excellent advice on promoting discussion and civility in legal education, shared at the recent Southeastern Association of Law Schools’ Conference.

Professor Suzanne Rowe of Oregon Law spoke on a panel about building character in the classroom. She briefly stated the character values law school seeks to instill—integrity, trust, respect. And then she focused on specific tools and methods for discourse within the classroom. That may not be all we need right now, but it definitely can help.

What do students need? They need to hear other views, respect other viewpoints, share their convictions with other classmates, and engage across the spectrum of ideas.

But what happens when this “spectrum of ideas” leads to a truly difficult conversation—where someone offers an opinion that fundamentally attacks the integrity, worth, and humanity of another person? Professor Rowe offered a roadmap for responding in these moments:

1.  Recognize what happened.

For example, the professor might describe reactions: “I’m seeing eyebrows raised and people seeming very uncomfortable.”

2.  Share what you feel and believe.

After an objective assessment of what has happened, the professor can share her reaction. For example, “I believe you can say that in a more professional way” or “I feel that the words you’ve used are harmful to members of our community.”

3.  Act

If the professor has prepared for this type of disruption, she might immediately lead students in a discussion of the unprofessional or harmful comment. If not, she might ask the class to take a break and regroup in a few minutes or the next day to engage in that discussion.

Professor Rowe also talked about teaching the value of disengaging. Students can engage more fully when they know they do not have to continue engaging no matter what they may hear. Some students might chose to step out of the classroom during a discussion.

There are no easy answers, but the framework for recognizing, sharing, and acting—plus disengaging at times—may help.

DiversityEmotional intelligenceEmotional laborInclusionLaw school

Listening begets listening

Thanks to Professors Alexa Chew and O.J. Salinas for their guest post below on fostering an open dialogue on diversity and inclusion in law schools. They will be presenting on these issues this week at the Association of Legal Writing Directors’ 2017 conference.

Law schools throughout the country continue to face issues related to diversity and inclusion. Students may feel unwelcome or marginalized at their law schools, and these feelings can impact their academic performance. This isn’t news, and most people want to foster a more inclusive law school environment.

chewBut what might be news are the details of these students’ individual experiences or the scope of these negative experiences within a student body. This matters because a precursor to making a law school more inclusive is understanding how students are feeling excluded. It also matters because if you’re not hearing those details, you might think that your school doesn’t have an inclusion problem. Or worse, you might be unknowingly contributing to it.

Whether you know it or not, your school probably does have an inclusion problem.

There is likely a group of faculty and staff at your school who know this well because they hear more than their share of students’ unhappy stories. Being one of those “go-to” folks is a blessing and a burden. It is a gift to be trusted with the intimate details of someone’s misery, to be present with another person’s vulnerability, to hear things before they need to be shouted. But it can also take an emotional toll on the listener. This is especially true when the student’s experience overlaps with the listener’s—for example because both are racial minorities or the first in their family to attend college.

A thing about burdens, though, is they get lighter when more people take them on. Not only that, but sharing burdens builds community.

salinasResearch suggests that the differences or misunderstandings that divide us can be lessened when we speak to each other and get to know each other a little more. Inviting students to share their stories and listening to those stories can improve those students’ well-being, especially if they feel that they haven’t been listened to in the past.

Here are some ideas for helping to invite these conversations:

  • In an individual conference or office hours, you might ask a student open-ended questions about how school is going. Listen to the answers non-judgmentally. Observe the student’s body language. Put on your lawyer hat and ask follow-up questions based on what you’ve heard and seen. (But remember it’s not an interrogation!)
  • In class, you could share a personal anecdote that suggests you have some experience with feeling like you don’t fit in. Explain that it’s common for law students to feel like they don’t belong. The reasons might be diverse, but the feeling of being an outsider is shared. This common ground can form the foundation for further conversation.
  • In class, you could issue a more explicit invitation to students–let them know that you are genuinely interested in their law school experience. Let them know that they can feel free to talk with you about non-academic concerns. (But be aware of reporting requirements at your institution. If you get the sense that a student might want to disclose information that must be reported, for example to your institution’s Title IX office, you’ll need to stop the conversation and advise the student of your duty to report certain information. This might be welcome news to the student, or it might not. The student can then make an informed choice about what else to share with you.)
  • Host a forum where students share their stories related to diversity and inclusion. A physical forum can foster real-time dialogue about students’ experiences and potential actions to address their concerns. The presence of faculty, staff, and administrators at a forum can expand the conversation by signaling that these issues matter and should be taken up by the whole community.

As readers of this blog surely know:

Listening begets listening—the more you practice, the better you get.

When it comes to conversations about diversity and inclusion, you might be afraid of saying the wrong thing. That’s a reasonable fear, and we’ve both said the wrong things during these conversations. It doesn’t feel great. But sometimes there isn’t a right thing to say. Sometimes the best you can offer is your time, your attention, and your ear.

If you are attending the ALWD Conference this week, we invite you to attend our session on Wednesday afternoon at 2 pm, where we will be hosting a conversation about these issues. The 2017 ALWD Conference is dedicated to discussions surrounding diversity and inclusion, as reflected by its theme: Acknowledging Lines: Talking About What Unites and Divides Us.

Thanks again to Alexa Chew and O.J. Salinas of the University of North Carolina-Chapel Hill:

Alexa Chew is a Clinical Associate Professor of Law at UNC Law. You can also find her on twitter at @aznchew.

O.J. Salinas is a Clinical Associate Professor of Law at UNC Law. You can also find him on twitter at @ojsalinas.