We developed five Habits of Cross-Cultural Lawyering in 1999 to provide teaching and practice materials about cross-cultural lawyering in clinical legal education. We believe that all lawyering is cross-cultural, so teaching about cross-cultural lawyering is necessary if clinical students are to provide quality representation to their clients. We also believe that the measure of good cross-cultural lawyering is the respect a lawyer has for her client’s dignity, voice, and story, and the lawyer’s understanding of her own biases and ethnocentric world views. The five Habits can enable lawyers to show their clients this respect and develop this understanding.
The five Habits are as follows:
• Habit One, Degrees of Separation and Connection, invites lawyers to explore how similarities and differences with the client might influence their relationship and fact gathering.
• Habit Two, The Three Rings, expands the focus of Habit One to include the cultural dimensions of the case or project with a goal of strengthening the client’s legal claim. Habit Two considers similarities and difference between the lawyer and the law; the law and the client and the client and the lawyer.
• Habit Three, Parallel Universe Thinking, invites lawyers to identify alternative explanations for observed phenomena before acting upon any conclusions in order to destabilize the lawyer’s certainty about the meaning of others’ actions.
• Habit Four, Red Flags and Correctives, encourages lawyers to reflect on communication before, during and in between client encounters in order to troubleshoot problematic interactions.
• Habit Five, The Camel’s Back, addresses the inevitable moments when the lawyer blunders cross-culturally. Like the proverbial straw that breaks the camel’s back, any one of a multitude of stressors can become the final factor which leads to a cross-cultural mistake. Habit Five, The Sadder but Wiser Habit, looks retrospectively at a problematic moment to identify factors that likely led to a cross-cultural mishap and to eliminate those factors in the future.
The Four Threes
We often introduce the Habits in a short lecture identifying four groups of underlying assumptions, known as the Four Threes. The goal for this introduction is to enable students to answer the following three questions: What questions are the Habits asking? Where do the Habits come from? And lastly, how can the Habits help improve the lawyer’s cross-cultural practice?
While the the Four Threes framework presented below is best introduced in a short lecture, the lecture can be modified to work as a short discussion as well. Additionally, this post includes a number of other ideas for introducing the Habits. If time permits, consider incorporating the exercises suggested throughout, which are designed to facilitate student insights about culture.
The Three Steps
The first set of three are the Three Steps, which describe the essential elements of cross-cultural lawyering:
- Identify assumptions in daily practice, which lawyers often make about clients and other participants in the legal system in order to fill gaps of information.
- Challenge those assumptions with facts. These facts should be gathered from each individual case. Lawyers specializing in particular practice areas must resist relying on assumptions based on their legal specialization.
- Lawyer based on fact at each step of the lawyering process.
Because we believed that lawyers, once they had identified assumptions pervading their work, could do the second and third steps readily, the Habits and many of our other materials focus on the first step: surfacing assumptions. (Note, When teaching the Habits we often include or teach separately other techniques for identifying and challenging assumptions. See Doubt & Belief, Challenging Assumptions, Talking About Race.)
The Three Ghosts of Diversity Trainings Past
The Three Ghosts attempt to avoid common pitfalls that often plague discussions of diversity and difference generally.
The first ghost is fear of being judged by self or others. Our willingness to engage honestly and meaningfully in discussions of diversity and difference is often hindered by an immobilizing fear of judgment–people are afraid to speak out of fear of being labeled racist or otherwise prejudiced. We also fear what we will learn about ourselves. Discussions must be designed to minimize this fear if they are to happen at all.
The second ghost is a focus on teaching white people about non-white culture. Discussions of diversity and difference are often exclusively designed to inform privileged or dominant groups about minoritized or marginalized groups. There are several problems with this approach. First, it supports the illusion that privileged and dominant culture is not a culture at all, but societal norms, allowing individuals from the privileged and dominant group to avoid understanding themselves as cultural beings. The approach focuses its educational resources on privileged groups instead of asking what do all students need to know when working across culture. Finally, this approach is burdensome for minoritized and marginalized groups, as discussed below.
The third ghost is the placing of unfair burdens on people of color. It is unfair to ask minoritized and marginalized individuals to explain the nature of their marginalization because doing so can be painful, frustrating, and mentally, emotionally, and physically exhausting. It can ask a person who has been unfairly treated to relive that treatment, or shoulder an additional burden based on the treatment. Instead, individuals of privileged and dominant groups should try proactively to understand the experience and nature of marginalization by seeking out resources on these subjects and by listening when marginalized individuals want to talk about their understanding and experiences.
A teacher can quickly lecture these points or use these points as an opportunity to ask students to volunteer reflections from recent diversity trainings they have participated in and to share whether the ghosts resonated with their experience or not. The Habits were developed in 1998 and current students may have different ghosts of diversity training. If the teacher decides to develop this point, care must be taken here not to raise one of the ghosts in doing so—students of color may be more willing or feel greater pressure to respond to this prompt, so the instructors might consider a participatory mechanism that invites white students to reflect and share too, systematically encouraging a reaction from each student in a round -the-room manner and allowing students to pass if they wish.
The Three Dynamics
The Three Dynamics were formulated to banish the Three Ghosts. The Three Dynamics are nonjudgment, isomorphic attribution, and daily habit and learnable skill.
Nonjudgment responds to the first ghost, fear of being judged by self or others, by attempting to strip away the branding and labeling that have often been sources of guilt and shame when engaging across difference. Nonjudgment demands that we observe and gather facts, but refrain from evaluating, drawing conclusions, or otherwise judging. Nonjudgment focusses on facts and delays or suspends conclusion. Enter and remain in a fact-finding spirit. We can improve cross-cultural competence by removing the fear of being judged, first by using nonjudgment towards ourselves and others, and by cultivating nonjudgment in our community and conversations. Specifically, nonjudgment first requires us to acknowledge without condemnation the existence of assumptions in ourselves and others. The ultimate goal is to make way for examination of those assumptions, which cannot occur without first acknowledging them.
Jean and Sue often referenced the Sufi mystic poet Rumi in describing nonjudgment: “Out beyond ideas of rightdoing and wrongdoing, there is a field. I’ll meet you there.”
Isomorphic attribution is the practice of attributing to a behavior the meaning attributed to it by the person performing the behavior. A classic example is a client who fails to make eye contact. A lawyer might be inclined to read that behavior as evasive or revealing dishonesty while the client might understand it as a sign of respect for authority. A lawyer seeking isomorphic attribution seeks to attribute the same meaning as her client to the client’s behavior.
Daily habit and learnable skill suggest that we must shift our mindset and attitude toward cross-cultural lawyering from believing it is an innate talent only for seeing it as a learnable skill for all. This shift in thinking enables lawyers to practice cross-cultural lawyering every day with the goal of making it a lifelong habit. If done correctly, daily practice and reflection allows us to improve our cross-cultural competency, little by little, day by day.
Howell’s Four Stages of Cultural Competency
A useful scheme to introduce here is the learning model developed by William S. Howell. Howell introduced four stages of cultural competency:
- unconscious incompetence,
- conscious incompetence,
- conscious competence,
- and unconscious competence.
W.S. Howell. The Empathic Communicator 30–35 (1982).
In other words, many of us begin not knowing what you don’t know; then evolve to knowing we lack knowledge or skill; then, learning that knowledge or skill, and ultimately, utilizing the knowledge or skill with such ease that it can be described as second nature. It may be helpful to tell students that the Habits are intended to help move them from the second stage, conscious incompetence, to the third stage of conscious competence. It may also be helpful to recognize that the second stage, conscious incompetence, can be deeply uncomfortable and challenging, giving rise to an impulse to return to the first stage when we are blissfully unaware that we lack a certain knowledge or skill.
The Three Principles
The Three Principles describe the three most foundational precepts of the Habits; they are also Jean’s and Sue’s own assumptions, so should be laid bare.
First, all lawyering is cross-cultural. At a minimum, the lawyer’s professional training will differentiate her from her client, who has not been acculturated to the legal profession. In any case, in the twenty-first century America, we believe this assumption to be accurate and teh appropriate default.
The second principle is to remain present with this client ever respecting her dignity, voice, and story. In order to accomplish this, lawyers must first recognize their ignorance about the life of their client and, second, understand their client’s worldview and values. (For more on dignity, voice, story, consider this speech. (Video of the speech is available.) The core of this principle is to remain faithful to the client and her felt concerns at all times.
The third principle is to know oneself as a cultural being. Here, the most important messages are the continuously ongoing need to recognize how our cultures shape our world view, values, judgments, and interpretations, and to do so nonjudgmentally so as to encourage this practice instead of getting bogged down in guilt or shame.
This introductory presentation of the Four Threes should aid students’ understanding of the Habits’ origins and purposes and about the ways the Habits can help them improve their cross-cultural practice as lawyers. The introduction provides background as they endeavor to learn and practice the habits.
Depending on how much time we have allocated to teaching the Habits, we may move right to the individual Habits after this introduction of the Four Threes. Jean, who often taught the Habits in a single class, generally quickly introduced the Four Threes before moving habit by habit. Sue, who generally devoted more class time to the Habits, often skips some of the Four Threes and uses one or two of the exercises below for students to discover some of insights found in the Four Threes. The exercises are designed to teach about how culture functions and how it influences relationships and lawyers’ work.
Beyond the Four Threes: Teaching Culture Generally
Students will more successfully learn the Habits if they have a general understanding of culture and its influence on a lawyer’s thoughts and actions. We usually introduce students to important cultural concept by assigning one of our writings on the Habits. (See Resources below). In addition to learning about the role of culture to the lawyer, her practice, and to the lawyer-client relationship, students are also introduced to the following concepts:
• Insider–outsider status, which is especially important where a client’s culture is distrustful of lawyers or the lawyer’s culture and thereby impeding trust;
• Role and hierarchy, which can differ within cultures based on the roles adopted by individuals within varying social groups or based on status markers;
• Individual and collective cultures, which result in different communication styles, values, and views of the roles of the lawyer and client and are based on whether individuals come from individualist or collectivist cultures;
• Gender norms
• Categorization, which describes the manner in which individuals from different groups organize information;
• Direct and indirect communication
Culture-General and Culture-Specific Knowledge
In addition to learning about culture generally, lawyers should also learn the specific culture of their clients. Remembering, even if lawyers learn a client’s specific culture, the next client from that same culture may or may not identify with it in the same way, so the lawyer should learn this for each client individually. Culture-specific knowledge is vital to effective representation as it can reveal insights into client communication and decision making, along with other important information such as the politics, geography, and history of the client group.
These exercises listed below may be used to raise awareness of how assumptions function in the ways we interpret and attribute behavior and communication.
Ask students to generate a list of things on which culture might be based and review the list together as a class. This list might include race, ethnicity, geography, religion, sexuality, class and much more. This can be done popcorn-style with students shouting out answers while the instructor or another student records their responses on a chalkboard or whiteboard. Alternatively, or in addition, ask students to list three words that describe themselves. Next, ask for three cultural traits that students would also use to describe themselves. Then, lead students in a discussion about how the two sets of lists might relate to one another. For example, ask students to define their personality traits. Then, ask them to consider how their cultural backgrounds shape their understanding of those personality traits. Students may find that their understanding of the personality traits they listed differ from one another based on their differing cultural backgrounds. The point of both exercises is to help students recognize the scope and depth of culture in their daily lives. This exercise might also be used in conjunction with Habit 1.
To introduce the idea that all lawyering is cross-cultural ask the students to imagine a client similar to yourself in every way and to ask what cross-cultural lawyering might look like in such an instance.
To aid students in answering this question ask students to recognize and reflect on their own acculturation to legal culture. Ask students to take one minute to think silently about changes in their thinking, communicating, and valuing since beginning law school. After one minute, ask students to share their thoughts with a partner, giving each one minute to speak. Once students have shared, invite two or three volunteers to share their discussion with the whole class. Students are likely to identify the change in their vocabulary and their use of legal terminology; they may recognize that they have become argumentative and that their method of argumentation has changed so as to require greater evidentiary support for claims made by others; and their understanding of fairness, harm, causation may have changed so as to be in line with legal principles of liability. The teacher can use the students’ answers as examples of the cultural categories listed above as a way to teach these categories. See, Chapter 15, Reflecting on the Habits: Teaching about Identity, Culture, Language, and Difference pp 353 – 354 for ideas for debriefing this exercise.
Some students have difficulty understanding how we each attribute different meaning to the same statements or behavior that we observe. These next exercises below are useful as they give the students the opportunity to experience for themselves these ideas.
Using Pictures to Spark Understanding About How Culture and Experience Influence Fact Gathering.
We often start the Habits class with an exercise that was designed by Jayesh Rathod, a Professor at American University Law School. We show a picture of two young children and a man with backpacks walking in desert type surroundings and carrying a plastic bag. The picture is an ambiguous one in which people can attribute lots of different meanings: We ask people to do a quick write – what do they see? We quickly gather ideas after less than 1 minute of writing. Students give the participants different roles (e.g. father, brother, friend, kidnapper for the adult in the picture & different activities (eg. backpacking, garbage collection, going to school, in a desert crossing the border.)
Question for Debrief:
Why do we each attribute different meaning to the same picture? We use this conversation to illustrate categorical thinking. In attributing meaning to this picture, we are using categories – roles played by adults & children who are with each other, influence of scenery, category of backpacks, garbage bags, etc. current common narratives – children crossing the border. (the actual picture came from a website that was anti-immigrant.) Note that categorical thinking is efficient except when the categories are laced with bias and stereotype thinking or when they short change full factual development.
Exercise 4: Using Narrative to Fill in Details – How Culture and Experience Influence Filling-in
Sue has asked students in groups using big sheets of paper to draw a picture of this story:
“There was a shooting. The next-door neighbor heard the shot and looked out the window just in time to see the culprit run past.”
Students are given 4 – 5 minutes to draw. Then we post the drawings and look at similarities and differences. The drawings often differ in how the houses/apartments look, the neighbor can be looking out of tall building or 1 story house. The shot can come from large multi-storied apartment or two-storied house. The neighborhoods differ – suburban, urban. The neighbor is usually a woman; the culprit usually is a man. Race may differ.
This exercise comes from Bridgette Carr who introduced it at a new clinician conference. Sue uses this exercise in an immigration clinic class to illustrate the importance of making sure we are not filling in instead of painting a full picture for the fact finder. She tells a story of a client who lost an asylum application because he claimed he saw the police in the front of the house and jumped from a second story window in the back of the house to escape the police. The hearing officer found this story incredible. When students were preparing to present this same case to the immigration judge, we asked our client to draw the house and its dimensions, we saw that the house was one room with a short loft for sleeping the window was probably no more than 6 feet off the ground. The hearing officer’s idea of the second story of the “house” differed substantially from our clients.’
By introducing students to the effects of culture on our view of what we perceive as normal and how it drives questioning, we give students additional insight for evaluating the thoroughness and accuracy of their interviews. We can spend time asking students to develop lines of questions to avoid filling in. We can ask clients to draw pictures.
Jean uses a block exercise to teach some of these same lessons.
Resources for class assignments
Susan Bryant & Jean Koh Peters Chapter 4, The Five Habits of Cross Cultural Lawyering, in RACE, CULTURE, PSYCHOLOGY, AND LAW, edited by Kimberly Barrett and William George, Sage Publications (2004) For use in Teaching Habits in all clinical programs.
Jean Koh Peters, Representing the Child-in-Context: Five Habits of Cross-Cultural Lawyering, useful especially in teaching in clinics involving children.
Useful for teachers
Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 Clinical L. Rev. 33 (2001), 64 – 67, 81- 82, 88
Susan Bryant & Jean Koh Peters, Reflecting on the Habits: Teaching about Identity, Culture, Language, and Difference, Transforming the Education of Lawyers: the Theory and Practice of Clinical Pedagogy (Carolina 2014) 355 – 357