Brief Description:

Habit One, Degrees of Separation and Connection, creates two ways of mapping the client’s and the lawyer’s worlds to explore how culture might influence their relationship and fact-gathering. The habit of examining the lawyer-client relationship through a cultural lens, Habit One invites the lawyer to map impressionistically the overlaps and disconnects between the lawyer and the client’s worlds using a Venn diagram, with two circles representing the lawyer’s and client’s universes, respectively. Habit One also asks the lawyer to inventory differences and similarities that the lawyer perceives between themselves and their client. Using these two methods, the lawyer focuses on the lawyer’s and client’s multiple identities (the inventory) and on particular identity factors that may heavily influence connection and distance (the Venn diagram). When lawyers represent groups, they can use Habit One to identify similarities and differences between group leaders and themselves, between the group and themselves, and among group members.

Habit One allows a lawyer to compare his/her impressionistic views of his/her commonalities and divergences from the client to specific facts known about the lawyer and the client across various characteristics. Through this focus on similarities and differences, Habit One allows lawyers to identify hot-button issues in their own identity and life experiences (e.g., race, class, gender, employment), which may play an outsized role in the lawyer-client relationship, often manifesting as negative judgments about clients who are “different.” Habit One also enables lawyers who see themselves as similar to clients to be alert to assumed similarities that cause lawyers to superimpose their worldview over their clients’. The search for similarities also may be useful for creating connection and empathy. Finally, Habit One can help the lawyer focus on how fact-gathering is shaped by assumptions that he/she is making about similarities and differences between him/herself and the client.

Exercise 1 (10 minutes to do and 10-15 minutes to debrief)

1. Self-Identity – List
   • Take out a sheet of paper
   • List all the identities you have.
     • What we are looking for here is not personalities but identities that shape our worldview and our culture. (It may be helpful to give some examples of salient similarities and differences: e.g., ethnicity, socioeconomic status, marital status, race, social status, role in family, sex, language, immigration status, nationality, sexual orientation, gender identity, religion, age, physical characteristics, educational attainment, geographic region.)
2. Identity in Relation to Another – 2 different ways to represent: Venn Diagram and List
   1. Ask students to identify a client or client group they are working with for purposes of using Habit One—we usually encourage students to use a client who themselves or their case is occupying a lot of the student’s time and mental energy. (You can also use the Habits Critical Incidents Questionnaire to identify a client for focused work during the class.)
   2. Ask students to draw a Venn diagram of the similarities and differences of a client they want to focus on. You may need to explain and illustrate the Venn diagram idea as many took math long ago. We usually show what the Venn diagram should look like if you are very similar to and very different from your client (i.e., a large overlap of two circles to show substantial similarity or small overlap between the circles to show high degree of difference).
   3. Next, ask students to make a separate list of similarities and differences between themselves and their client. About 2 minutes into their list-making, tell students that if their lists of similarities are long look for differences and if their list of differences is long look for more similarities.
   4. If we have the time, we like students to apply Habit One at least twice during the class with different comparison subjects (a fellow classmate or a different client, for example). When students compare themselves with these different subjects, they often describe themselves differently. This allows students to see that the characteristics and identities that shape interactions can change depending on the context.
   5. Students working with client groups may find Habit One work more complex but instructive as they identify the similarities and differences between the members of the group themselves and with the lawyer. See Alicia Alvarez & Paul Tremblay, Multicultural Lawyering and Multicultural Competence, in INTRODUCTION TO TRANSACTIONAL LAWYERING PRACTICE (2013).

Example

Debriefing Exercise 1

In the debrief, we want to gather insights from the students and give some of our own thinking about why we pay attention to similarities and differences. We usually start the debrief with a very open-ended question: “Did anyone notice anything about the relationship or the case because of doing this?” Students will usually offer insights they did not have.

Questions for the Debrief: 

1. Did anyone notice anything about the lawyer-client relationship or the case as a result of doing this?
   • In every class, we have students who gain new insights about their cases. Often a student will offer that the list making helped them see why they were feeling judgmental about a client.
   • Sometimes, we ask them to imagine how their client might draw these circles (this activity can be done mentally, or in drawing). While dangerous in some ways, as the lists may be more likely to be based on stereotype than individual client knowledge, the exercise causes them to remember that other important similarities or differences to the client may be influencing the relationship. Students often remark that they know much less about the client than they might have thought, and also that their knowledge is imbalanced – detailed in some areas of the client’s life and nonexistent in other critical areas.
2. Did you get different insights from the lists and the diagrams?
   • While you might think the list and Venn diagrams are just two approaches that will reveal similar insights, students often see that they gain different insights from each of their attempts to capture similarities and differences. They often note that the Venn diagram caused them to think differently than making lists and they gained different insights from each activity. Typically, the list encourages students to write down as many characteristics as possible. By comparison, the Venn diagram draws attention to areas of distinct overlap and divergence. For example, even with a short similarities list a student can still feel very similar to the client from the perspective of the Venn diagram because of an over-arching similarity such as race or ethnicity. The short list of similarities may not reveal a strong sense of similarity but a Venn diagram may elicit feelings of similarity or, alternatively, the student may have many similarities and yet, for other reasons, find herself feeling very distant from the client due to class or gender differences, which become more salient when a student draws a Venn diagram with little overlap. Thus, the lists provide the details and help identify particular sources of stereotyping and bias and the Venn diagram illuminates important information about sameness and difference.
3. Do the similarities and differences you’ve identified with your client affect how you see yourself?
   • This question gives students the opportunity to think introspectively about their own identities in relation to the characteristics, cultures, and behaviors they’ve discerned in their individual clients. Although Habit One’s primary objective is to facilitate learning more about the client and the ways in which the client’s similarities and differences with the lawyer may influence the scope and quality of representation, Habit One also offers a reflective vantage point by which lawyers can better understand themselves.
4. Why might we care about acknowledging both difference and similarities?
   • Habit One helps lawyers balance appropriately empathy and professional distance and assess the attorney-client relationship. Differences may create distance between the client and the lawyer from an interpersonal perspective, which may then influence advocacy. More similarities on the other hand may be comforting, but the documentation of these similarities ensures that the lawyer views the client as an individual and not a reflection of the lawyer. Habit One thus empowers lawyers to challenge assumptions and implicit bias.

Acknowledging Similarities to Make Connection. Searching for similarities helps students develop empathy. Research also shows that negative judgments are more likely to occur when a client or lawyer sees the other as an “outsider.” As such, this identification of similarities may help students deconstruct their biases. Once recognized, students can think carefully about whether revealing similarities to clients would be helpful in building client relationships. Will the clients see the revelation in the same way the student does as a point of connection or as an indication that the student does not understand or is not client-focused? Habit One allows students to examine ways in which these factors affect clients’ sense of closeness to or distance from their lawyers. In representing groups, Habit One may give lawyers insight into why certain group members seem easier to connect with than others.

Acknowledging Difference to Avoid Substituting Your Experiences for the Client’s. In class and in supervision, we encourage students with long lists of similarities or whose circles overlap broadly to ask themselves what, if any, differences they may be overlooking. By pondering this question, students can recognize that even though similarities promote understanding, misunderstanding may also flow from an assumption of precise congruence and the student needs some distance from the client to provide professional judgment. The student may also judge the client negatively because, despite their similarities, the client has not followed the student’s path e.g. that the client hasn’t responded to similar life situations the way the student has. Sometimes asking the student to identify differences can help the student see that the client has not had similar opportunities or has followed a different path for other reasons.

Acknowledging Identities Helps Challenge Biased Thinking. Even if negative judgments persist, this list-making activity can often assist students to identify the source of potentially biased thinking and to remain alert to the necessity of bridging the huge gap between the clients’ experiences and their own. Research on implicit bias indicates that those who try to bury difference (for example, “I do not see Black people”) are more likely to operate with implicit bias. Acknowledging the potential for bias and guarding against it is essential to challenging bias. See our webpage on Challenging Bias [LINK] for more on this.

Identifying Multiple Identities Individualizes Clients And May Help Reduce Biases and Stereotype Thinking. Seeing the client as having multiple identities can help lawyers see the client as an individual. Biased and stereotype thinking depend on categorical thinking; when lawyers see their clients as people with multiple identities, they are much less likely to essentialize them and engage in biased thinking. While there may be strategic reasons to identify the client as a group member to challenge biases in the legal system, this individualization exercise is designed for a different purpose and can be useful even if the lawyer is focusing on group-based discrimination cases. (More information on strategic advocacy regarding a client’s membership in a cognizable social group can be found on the Stereotype Tax [LINK] webpage.)

Identifying Multiple Identities Allows Students to see that there may be multiple intersecting identities that influence the client’s problems and the relationship between the client and the lawyer. By creating a list with all of these identities, the lawyer may see, for example, that the client is having problems based on youth, poverty, race, and neighborhood. This process of seeing the client more completely recognizes the value of intersectional thinking and not essentializing clients. It may also open opportunities for the lawyer to support the client holistically, beyond just legal representation. Exploring significance of similarities and differences on trust-building allows students and faculty to explore how racial mistrust and micro-aggression might influence the relationship. Note that if you have not introduced the concept of microaggressions before this—you can add it to the Habits class. We frequently assign excerpts from the following articles: Peggy C. Davis, Law as Microaggression, 98 YALE L.J. 1559 (1989); Michelle S. Jacobs, People from the Footnotes: The Missing Element in Client-Centered Counseling, 27 GOLDEN GATE U. L. REV. 345 (1997); and Derald Wing Sue et al., Racial Microaggressions in Everyday Life: Implications for Clinical Practice, 62 AM. PSYCHOLOGIST 271 (2007).

Other Exercises that build on or can be used to introduce Habit One – how similarity and difference affect fact-gathering?

A key principle of the Habits is challenging assumption. Fact-gathering is filled with assumptions. Students can also reflect on how similarities and differences influence their approach to obtaining information and developing a case or project theory. For example, when lawyers probe for clarification in interviews, they usually ask questions based on differences that they perceive between themselves and their clients and fail to fully explore client behavior or thinking based on perceived similarities.

For example, a student interviewing a client experiencing domestic violence who comes from a large extended immigrant family will likely explore a client’s safety and reasoning in detail when the client expresses ambivalence about leaving because of family disagreement with her actions. Whereas a client, with similar domestic violence circumstances who has left her home and is residing with family, may be less likely to get questions that explore her safety and reasoning about her present situation. Assumptions of similarity with this client may cause students to superimpose their own notions of safety regarding her family. Yet as both clients may face safety concerns, the lawyer should interview both clients about this issue.

Exercise 2: Using Pictures to Spark Understanding About How Culture and Experience Influence Fact Gathering. (5 minutes)

We often start the Habits class with an exercise designed by Jayesh Rathod. We show a picture with no advance explanation. This picture consists of two young children and a man with backpacks walking in a desert-like environment and carrying a plastic bag. The picture is an ambiguous one in which people can attribute lots of different meanings: Without sharing any context, we ask students to do a quick write: What do they see? We quickly gather students’ ideas after a minute of writing. Students often attribute different roles to the individuals (e.g., ranging from father, relative, brother, friend, smuggler, kidnapper) as well as different activities (e.g., backpacking, garbage collecting, walking to/from school, or crossing the border.)

Question for Debrief:

Why do we 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 and children who are together, as well as the influence of scenery, the presence of backpacks and garbage bags, and current common narratives—children crossing the border. (This picture actually came from an anti-immigrant website.) It is worth noting to your students that categorical thinking can be efficient except when the categories are laced with bias and stereotyped thinking or when it short-changes full factual development.

Exercise 3: Using Video Interviews to Illustrate How Culture and Experience Influence Questioning.

One way to teach this insight is to show an interview clip and ask students what information they want to follow-up and what questions they will ask. When different students propose different questions, the teacher can begin to explore why we inquire about some, but not other, information. This inquiry usually uncovers concrete examples where students develop questions because the client is making different choices than they would or where the students perceive an inconsistency between what the client is saying and doing and what the student knows based on their experience. Often different students will want to gather different information. Exploring these differences in class provides an opportunity to show how our experiences cause us to fill in and question differently. Link to Sign Video.

Exercise 4: Using Narrative to Fill In Details – How Culture and Experience Influence Filling-in.

We ask students in groups using large sheets of paper to draw a picture of the scene imagined using only the following description:

“There was a shooting. The next-door neighbor heard the gunshot and looked out the window just in time to see the culprit run past.”

Students are then given 4-5 minutes to draw.

Then we post the drawings and look at similarities and differences. The drawings often differ in how the dwelling looks, the neighbor can be looking out of tall building or a single-story house. The shot can come from a large multi-story apartment building or a two-story house or be on the street. The neighborhoods differ – suburban, urban, or rural. The neighbor is usually a woman; and the culprit is usually a man. Race may differ.

This exercise comes from Professor Bridgette Carr who introduced it at a American Association of Law Schools Clinical Conference. Sue uses this exercise in immigration courses to illustrate the importance of making sure we are not filling in and 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 his 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 and that 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 client’s.

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.

However, Habit One does not really provide the student with the tools necessary to elicit an authentic client narrative. For that reason, we often teach narrative theory and narrative information-gathering techniques alongside the Habits. For more on this, see Robert Dinerstein et al., Narrative Theory and Narrative Practices, in LAWYERS AND CLIENTS: CRITICAL ISSUES IN INTERVIEWING AND COUNSELING (2009). A systematic approach to Doubting and Believing also allows the interviewer to get outside his intuitive, culturally-bounded, information-gathering process. Habit One gives us insights into why questioning driven by the lawyer’s experience and culture is often insufficient and motivates the student to apply Doubting and Believing and narrative inquiry to interviewing.

Here are some summary points:

• Bias decreases when we pay attention to sources of bias
• Bias decreases when we individualize the client
• Pay attention to cultural context when fact-gathering
• Difference and similarity influence trust building
• Difference and similarity influence negative and positive judgment and understanding
• Difference and similarity influence organizing and assessing facts

Resources

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

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) 51 – 53

Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 Clinical L. Rev. 33 (2001), 64 – 67, 81- 82, 88

Jean Koh Peters, Representing the Child-in-Context: Five Habits of Cross-Cultural Lawyering,

Video Links

Sign video

Slides

Habits Critical Incidents Questionnaire