Habit Four: The Habit of Not Making Habits When Communicating with Clients
The first three habits focus on ways to think like a lawyer, incorporating cross-cultural knowledge and nonjudgment into analyzing how we think about cases, our clients and the legal system. Habit Four focuses on cross-cultural communication, identifying some aspects of normal attorney-client interactions that may be particularly problematic in cross-cultural encounters as well as alerting lawyers to signs of communication problems, while creating a rubric for brainstorming correctives to these problems.
Why is Habit Four helpful?
Cross-cultural communication is fraught with potential for problematic conversations, where meaning is distorted or lost. Cultural norms influence how we speak, who speaks to whom, when we speak, and what we speak about. When working across cultures, lawyers will communicate more effectively if they understand how these norms influence conversation across cultures generally and if possible in the client’s specific culture.
Because a full understanding and application of a particular culture’s norms is difficult and because an individual client may not follow it, inevitably, a lawyer working across cultures encounters communication difficulties. When this happens, Habit Four asks the lawyer to identify red flags – concrete moments of faltering communication in the interactions – to brainstorm parallel universes to explain the faltering, and to plan possible correctives – alternative strategies – to bridge the gap of communication. Habit Four accustoms the lawyer to reflect on communication while communicating and in between client encounters, developing a repertoire for potential responses and overtures to continually improve lawyer- client communication as the relationship progresses.
Habit Four is about communication in action
Habit Four encourages conscious attention to the process of communication–a skill and perspective that clinical teachers have used to improve interviewing skills in all attorney-client interactions. By identifying potential cross-cultural pitfalls and attending to these issues, students will likely perceive aspects of the interaction that they may have missed even if they were paying attention to the process of communication. Habit Four operates both prospectively and retrospectively and, once the habit is internalized, a lawyer continuously anticipates, notices, and reflects upon her daily communications with her clients.
Habit Four in Action: Spotting Red Flags and Brainstorming Correctives
There are three main parts to Habit Four: anticipating and planning correctives for red flags before a client interaction, noticing red flags and attempting correctives as they occur, and reflecting on red flags and planning new correctives after the fact.
Habit Four encourages the lawyers to identify “red flags” and craft culturally sensitive correctives that will assist the student in paying attention to the process as well as the content of the interview. These red flags include indications that clients are disengaged, angry, actively uncomfortable or misunderstanding aspects of the lawyer’s interactions. Note also, a lawyer can recognize a red flag in the lawyer’s reactions, for example, of disinterest, mind wandering, or anger at a client who is telling a different story than the one the lawyer has asked about. Thus, Habit Four encourages the student or lawyer to remain ever vigilant in their observation of themselves.
To observe themselves, lawyers can begin by brainstorming about red flags that they already noticed in past communications with clients. For every lawyer this repertoire of red flags will be different. For instance, once a lawyer discovers that he is apt to yawn during moments of disconnection from the client, every subsequent yawn can become a red flag that alerts him to the faltering communication and brings him back to this client. Like the faulty engine or door-open lights in a car, red flags alert lawyers to a developing problematic situation before it leads to any harm to the client or to the relationship.
Noticing a red flag is important, but it’s only half the battle. At first, students and beginning lawyers may not have the skills to address or correct a red flag as it occurs. All lawyers find that often the cause of the red flag will be difficult for them to decipher. Through intentional reflection after an interaction in which a red flag has occurred, they can brainstorm corrective measures to use in future encounters.
In exploring corrective measures, the main mistake that we often make is to use the same approach to correct the problem that may have caused the problem in the first instance. We repeat a question that didn’t work or simply rephrase it, when a different approach is needed. Habit Four alerts students to the importance of trying a different approach. For example, if the client is not responding to a direct approach, the student might try an indirect approach. Or, if the open-ended questions that call for a client narrative are not working, the client can be asked some specific questions or asked for a narrative on a different topic.
In general, the lawyer should engage in “attentive listening” to the client’s story and voice. When a red flag demonstrates that the lawyer’s concentration is faltering, the lawyer can redirect the conversation to the client’s words, understandings, priorities and narrative. In general, the lawyer can achieve this by directing the client to a narrative and expressive mode. When the client is telling his or her story actively, the lawyer can actively learn about the client and his or her culture and the way the client approaches problem solving and decision making.
Even when a lawyer does not see a red flag occurring, the goal of remaining present with the client and seeking his or her dignity, voice, and story remain overarching goals for every lawyer-client interaction. Whether in providing counseling, or eliciting information, the lawyer using this goal as a rubric will find himself or herself increasingly mindful of ways to individualize each experience with a client.
The Habit Four Worksheet suggests a step-by step approach to brainstorming correctives for future interactions once a red flag is identified:
- Brainstorm Parallel Universe explanations for the red flag; push yourself for the largest diversity of explanations, including cultural explanations, and alternative explanations pointing in radically different directions
- Select what you believe in the moment are the three most likely explanations for the behavior
- For each explanation, brainstorm at least five possible correctives you can use the next time you encounter the red flag.
- Once you have brainstormed correctives for each of the three, look at them all together. If one corrective appears in two or all three of the lists of correctives, make a note to try that one first next time. Prepare a document to prepare ideas for the next moment this red flag occurs.
- Enter your next meeting with the client with a game plan in case the red flag occurs.
Mastering Habit Four:
Although Habit Four is a habit that can be done in the moment, new lawyers often have difficulty paying attention to both the process and content of an interview at the same time. As beginning lawyers, students will be better able to focus on both content and process if they identify, in advance, indications of good communication as well as “red flags” that show that accurate, genuine communication is probably not occurring.
Students and new lawyers strive for ultra-pinpointed awareness of interactions with clients. This awareness motivates them to direct attention, to spotting red flags. The new responsibility of having a client, one’s constant concern about whether one is prepared enough to take on that responsibility, and the fear of making a large mistake of some kind all tend to increase the adrenalin flowing during lawyer client interactions. The new lawyer also is often hyper-aware of how successful the communication seems to be and therefore Habit Four awareness of client reactions may also be heightened at that time. In beginning, students may find it easier to observe red flags in their client so it is worth reminding them to pay to their own reactions as well.
Students can be encouraged to develop a repertoire of red flags in any given lawyer-client relationship and understand the correctives that “work well” with this client. Client by client, the lawyer can gain self-understanding about the red flags that are emblematic of his or her communication and correctives that specifically target those red flags. In the moment, red flags can remind a lawyer to be aware of this client and focused in this moment. A lawyer who reflects and learns from the experience of identifying and correcting red flags can also plan to avoid communication problems before they develop with future clients.
In class and later in work places, students can expand Habit Four thinking as those working together reflect on their practice and pool red flags that they have encountered in their own experiences. Lawyers who have missed problem moments that others have identified can use their colleagues’ insights to increase their own mindfulness.
Finally, Habit Four can work hand in hand with Habit Five. If a lawyer has sadly realized that he is more likely to disrespect a client of a certain demographic makeup, the lawyer can redouble his Habit Four efforts whenever he works with a client fitting that profile. Habit Four thinking and brainstorming are part of the arsenal of Habit Five protective measures that any lawyer should deploy when working with a client that she is at special risk of improperly serving.
Methods of Teaching Habit Four:
We teach Habit Four primarily through watching and interpreting videotapes, conducting simulated roleplays in class and reflecting on client meetings in supervision. These teaching methods mirror the ones we use to teach other client-meeting skills. (We link a chapter, Six Practices For Connecting with Clients Across Culture: Habit Four, Working With Interpreters and Other Mindful Approaches. You can assign all or parts of this chapter If you want to teach this Habit more fully or use it yourself to explore before teaching Habit 4.)
We design short exercises, simulations or videos to focus on parts of an interview for demonstration and analysis. To help students acquire the deep listening skills needed to identify red flags and craft correctives that cross-cultural interaction requires, we expose students to exercises that help the student become mindful of the interviewing process.
Deep cross-cultural listening, especially if the communication occurs with the help of an interpreter, is exhausting and difficult for students to master. Additionally, western cultures undervalue listening. Students who were encouraged in their childhood to pursue a legal career may well have received this advice because they displayed a tendency to argue, not because they were good listeners. Stimulating technology further challenges uninterrupted concerted listening for American students and may confuse clients accustomed to far less technology. Below is a list of exercises that we’ve developed and found useful. Feel free to draw from any of them or to design your own. Just as Habit Four recognizes that no particular corrective will work for all red flags with all clients in all situations, no particular exercise will work for each unique group of students and lawyers. We use this worksheet to give students while watching videos or doing hypos. Habit 4 Worksheet
Exercise 1: Focusing On Introductory Rituals.
Focusing on the beginning of the interview, we brainstorm the different introductory rituals that cultures use and we role-play the integration of these into the attorney-client interview.
Exercise 2: Deep Cross-Cultural Listening Attention to Body Language.
One way to teach attention to body language is to turn off the sound on a video excerpt and use the slowest fast forward speed that allows the students to quickly see client’s and lawyer’s body language. Ask students to identify when the client or lawyer is most engaged and disengaged by identifying visual cues. (For example, the brother-sister tape linked at bottom has a couple of classic body language moves that communicate more than the spoken words: the slump of the brother into the chair when the lawyer asks him to wait outside, the confused look on the sister’s face when the lawyer first suggests that her brother wait outside.) Teachers can also note that attributing meaning to body language is a tricky cross-cultural experience. For example, in some cultures, a nod means agreement while in others it simply means “I am listening.” Another example is the meaning of maintaining eye contact – it can mean a disrespect in some cultures and an engaged truthful exchange in others.
Attention to Communication Styles and Protocols:
In watching a video we can ask, Is the client’s style different from the lawyer’s. Can we separate content from style when the style is so different from our own? Are there topics that seem off limits or are discussed briefly by clients? These may be signs of protocols of silence about these topics. What other steps could we take to confirm that our assessment is right? We link below a video clip of a counseling session in a labor law case. The client and lawyer are having parallel but different conversations in terms of content as well as using different communication styles – one more passionate the other more measured.
On the interpretation page we discuss the use of a hypothetical that explores in detail a hypo that highlights taboo subjects in interviews.
In watching video recordings or reflecting on case interviewing, we ask whether we are correctly understanding the client and she us. What evidence in do we have for our evaluation that the client understands what the lawyer is saying? Especially when we are using interpreters or working cross-culturally, the lawyer must prepare for the possibility of some misunderstanding. We ask the students to search for red flags of misunderstanding and identify correctives.
Habit Four teaches the student that cross-cultural encounters can generate anxiety for the lawyer and/or the client. One cause for such anxiety is the concern that the other will not understand. Thus, concrete evidence that the lawyer understands the client will lessen that anxiety. Habit Four suggests that students can lessen client anxiety by using the active listening technique of providing feedback to the client so that the client knows that the lawyer is understanding the client. Recapping, reviewing, repeating, all time-consuming parts of meetings, can actually be efficient if it helps the lawyer and client develop a shared view of the facts and a less stressful interaction.
Habit Four alerts the student to look for culturally sensitive feedback from the client that the client understands the lawyer or is willing to ask questions about matters that are unclear to the client. Many clients will answer affirmatively to – “Do you understand?” Even when they do not understand, clients maybe reluctant to admit it. The lessons of Habit Four ask the student to develop other approaches for determining client understanding. How do we know what the client knows? For example, they can ask the client what she understands will happen now. Lawyers can also walk clients carefully through the next concrete steps at successive meetings and watch for moments when the clients spontaneously confirm that they know what is happening next. Lawyers can ask for a client’s assessment of the lawyer’s suggestion, identifying what they like or don’t about the suggestion. Any engagement that asks the client to use the information the lawyer has given will help the lawyer determine the client’s level of understanding.
Exercise 3: Use Scripts Wisely and Confirm Understanding
Students can be assigned the following hypo as class preparation or it can be handed out in class.
Jeff, an experienced attorney of twenty years, is a fourth-generation Austrian-American. He is also Jewish. Whenever he meets his clients who are the subjects of abuse and neglect proceedings, he introduces the legal terminology in the same way. He has found an explanation that works to explain unusual terminology like “plea,” “finding,” “neglect,” and the like. One day he finds himself explaining these concepts in the usual way to his new client Charles, a bright, verbal, eight-year-old African-American boy who lives in the housing project in the center of the city. Although Charles has been described to Jeff by the caseworkers as articulate and voluble, Charles is extremely subdued and quiet throughout the explanation.
When Jeff tries to get Charles to respond to his questions, Charles repeatedly states “I didn’t do nothing wrong.” Thinking of the many children who believe they are brought into court or believe they are responsible for the problems in their family, Jeff launches into a standard explanation that neglect cases are civil proceeding against his parents not against him. Charles remains quiet and withdrawn.
Jeff shrugs and tries to determine if Charles is happy living where he is currently. Charles tells Jeff that he is fine where he is living and asks if he can leave. Jeff shrugs and says yes, and reminds Charles and his caseworker of the next court date. Charles at the next court date asks if he needs to be present in court and is told by Jeff that he has the choice of whether to appear. Charles asks to be in the courtroom. He listens alertly to all that happens in the courtroom.
As they leave, Charles says to Jeff “How come there were no police in there?” Jeff asks Charles why he thinks police would be in there. Charles explains to Jeff that everyone he’s known who’s ever had a lawyer was put in jail. “You only get a lawyer if you’ve done something wrong,” says Charles.
If you were Jeff what red flags might you spot and what correctives might you employ?
Post Exercise Discussion:
Spotting the Red Flags:
The teacher can ask for and chart red flags and then follow-up with correctives tied to specific red flags. Depending on the time allotted to the exercise, the teacher can start with small group conversations before listing red flags or before listing correctives. For example, in analyzing Jeff’s conduct, students can recognize the following red flags:
- Charles’ reaction during the initial interview of remaining quiet as a possible red flag,especially because Charles is described as bright & voluble.
- Reaction of Charles – “I didn’t do nothing wrong.” – is inconsistent with the questions being asked.
- Charles is quiet and withdrawn after explanation designed to address his concern, “I didn’t do nothing wrong.”
- Charles wants to leave the client meeting
- Lawyer uses standard explanations in a script – no tailoring to this client.
- Lawyer is doing most of the talking
At this point or better after a discussion of correctives for this hypo, the teacher can further develop red flags that could arise during any lawyer-client communication.
The following examples may be a useful starting place, and may jog students into identifying other examples:
- The lawyer has not taken any notes for many minutes
- The client appears bored, disengaged, or even actively uncomfortable
- The client is using the lawyer’s terminology instead of the lawyer using the Client’s words
- The lawyer is judging the client negatively
- The client appears angry
- The lawyer is angry
- The lawyer is distracted or bored
- The lawyer finds himself or herself thinking about matters irrelevant to the Case while the client is speaking
- The lawyer finds himself or herself thinking about matters irrelevant to the Case when the lawyer is speaking
- The lawyer finds himself or herself using a script or speaking “rote”
Brainstorming & Naming Correctives:
In the hypo, Jeff did notice one red flag – the client’s concern. Jeff’s corrective did not work because he misidentified the cause of the red flag and adopted a corrective of providing more “standard information” to Charles.
By focusing student’s attention on this misdiagnosis, we can teach the students the importance of using Habit 3, Parallel Universe Thinking to identify why the red flag is happening. Especially when his corrective fails, if Jeff had rethought his analysis through Parallel Universe Thinking, he would have been alerted to the necessity of gathering more information from Charles to diagnose the problem.
How else might Jeff have responded to this and other red flags in the interview? Here, the teacher might ask the students in small groups or together to brainstorm correctives to the red flags.
- Turn the conversation back to the client’s stated priority
- Seek greater details about the client’s priorities and concerns
- Give the client a chance to explain in greater depth his concerns about the legal case
- Ask for examples of critical encounters in the client’s life that illustrate the problem area
- Ask the client what lawyers do and when people have them
- Explore one example or incident in depth
- Ask the client to describe in some detail what a solution would look like
- Use the client’s words
- Point out the red flag and seek to discuss it
- Take a break
- Consider the use of silence
These are only a few examples of the many ways in which client-focused correctives can be applied in lawyer-client communications. Below we list approaches to avoid red flags or as correctives if the red flags appear. These are worth reinforcing as you review tapes or hypos.
1. Use Narrative to explore understanding and develop culturally important information:
Habit Four encourages the student to gather culture-sensitive information through use of a narrative mode. If students engage in “attentive listening” to the client’s story and voice and encourage the client to engage in telling her story, the conversation gives the lawyer a window into the client’s world, the client’s understandings, the client’s priorities, and the client’s narrative.
Students are encouraged to ask questions that explore how others who are close to the client might view the problem and how they or she might resolve it. For example, had Jeff explored even briefly the client’s response to the situation, Jeff may have learned the source of the client’s apprehensions. These questions help the lawyer understand the context within which the client sees the problem.
Questions that focus on how the client sees the situation include: What are the client’s ideas about the problem? Who else has the client talked to and what advice did they give? What would a good solution look like? What are the most important results? Will anyone other than the client be affected or consulted? Are there other problems caused by the current problem? Does the client know anybody else who had this problem? How did they solve it? Does the client consider that effective? These questions are designed to elicited culturally specific information and processes. For example, whether others are affected or consulted may reflect a client’s use of a collective or individualistic process for decision making.
If the client has come from another country or, as here, has a specific understanding about the legal system, Habit Four encourages students to gather information about expectations the client may have about the lawyer and the legal system by learning about how the legal system works in the client’s country of origin. These questions also give the student some information about the client’s expectations of the legal system and the lawyer. For example, in many legal cultures, the lawyer is the “fixer” or the person-in-charge. In contrast, most law students in the United States are taught a model of client-centered lawyering that calls for a partnership and our ethical rules define a relationship in which the client makes decisions about resolving the case.
2. Pay Attention to Introductory Rituals
In this hypo, Jeff launches into explaining legal terminology. How does this introductory ritual set up the exchange to follow? Habit Four also encourages a student in a cross-cultural encounter to pay special attention to the beginnings of communications with the client. Each culture has introduction rituals or scripts as well as trust-building exchanges that build rapport and promote conversation.
Students are encouraged to consult interpreters and to pay careful attention to cues from the client in the beginning stages of the interview. For example, students are encouraged to think about what kind of exchange of information is likely to build confidence and connection early in an interview. Students are also asked to explore the different cultural perceptions that lawyers and clients may have about “getting down to business.”
3. Use Scripts Very Carefully
This hypo is a good one for teaching an important Habit Four lesson – use scripts carefully and cautiously. The more we engage in a particular activity, the more likely we are to have a “script.” For lawyers like Jeff, this often develops into scripts for the opening of interviews, including explaining confidentiality, building rapport, and explaining the legal system and other topics common to the lawyer’s practice. In preparing for interviews, students are encouraged to think about how they will explain some of these concepts. Early in their work as lawyers, students begin to develop the scripts for explanation.
Habit Four encourages the student, especially in cross-cultural encounters, to develop a variety of communication strategies to confirm what information is needed to be given. Scripts can be useful starting places but must always be tailored to client’s understanding and pre-conceptions. The questions set out above on eliciting culturally specific information of prior experience and knowledge of ours and other legal systems are helpful in this tailoring process.
Jeff, like most lawyers uses “patter” or standardized explanations of important concepts that occur in his daily practice. It does not, however, make sense to use the same words, phrasing, or tone of voice in describing the same concept, if each client must understand each concept for himself or herself anew in each interview. Yet these moments of standardized rituals may be the moments when the lawyer is the least mindful about the effect of his or her communication. The lawyer may even be rushing through these standardized introductory materials to get to the heart of the interview.
Habit Four urges lawyers to find ways to prevent themselves from launching into these standard explanations and to shake themselves out of complacency and refocus themselves on being present with the client. Being “on rote” risks tuning out from this client’s actual understanding of this concept. The lawyer may be on rote because the lawyer understands the concept inside and out, but in each individual interaction, the goal of counseling is for the client to understand the concept inside and out. Doing that requires individualized attention, no matter how many times the lawyer has explained the concept before.
In a classroom or supervision environment, using the game TABOO can be a fun way to break a lawyer out of rote explanations.
4. Avoid Falling into other Rote Patterns and unchanging rituals of Communication
In addition to focusing on scripts, it is worth noting that Habit Four also cautions the lawyer to make it a habit not to make other habits in communicating with clients. While it is comforting to have things we “always” do with clients at this stage, it is precisely that sameness that creates the large possibility of lawyer inattention and client confusion. Indeed, it is our very rituals and “standard operating procedures” that lay the traps for faulty communication with an individual client. Particularly for the lawyer working with high-volume and high-stress, rote patterns of communication and structuring of client interviews can become common and dangerous. Habit Four is designed to alert the lawyer to signs of faltering communication and to begin to suggest correctives toward optimal cross-cultural communication.
Closing Notes and Final Habit Four Tips:
Habit Four is Constantly Changing/Under Construction
Of the five habits, Habit Four is the most under construction. Because Habit Four addresses the critical question of lawyer-client communication, it could evolve into a whole class of habits of its own. Perhaps one way clinicians can keep Habit Four alive is continually to challenge ourselves and our students to find new ways to breathe life into Habit Four and our cross-cultural communications. Indeed, in another article we suggest six important practices we see as fundamental to effective cross-cultural client communication:
- Employ narrative as a way of seeing the client within her own context;
- Listen mindfully to promote and understand the client’s narrative;
- Use parallel universe thinking to explain client behavior and stories:
- Speak mindfully, taking into account the client’s culture, especially as it relates to how she expects to interact with the lawyer and the legal system;
- Work with interpreters in ways that enable the development of genuine communication between lawyers and clients; and
- Apply the Habit Four analytical process continuously to identify red flags that the interaction is not working and corrective measures that the lawyer might take.
Non-Judgment & Being Aware of Red Flags
Habit Four requires the lawyer to redouble the commitment to nonjudgment, especially about his or her own performance. A lawyer who identifies a red flag and then spends energy in the moment chastising himself or herself for being bored or distracted or for lapsing in mindfulness, robs valuable energy and concentration from the client encounter at hand. The best thing a lawyer can do in that moment is to refrain from the wasted energy of such a self-reprimand, and return to the lawyer-client interaction. If the lawyer must spend energy in dialogue with himself or herself about lapses in communication, perhaps the lawyer can congratulate himself or herself for identifying a red flag rather than wallowing in guilt or shame.
Whatever the strategy, the lawyer is encouraged to spend as little time in the moment on anything except a redoubled commitment to return to the client’s needs and viewpoints as soon as possible. Even when the immediate correctives do not come to mind, identifying a red flag is in itself an active service to the client. As with parallel universes, the very awareness and refocus on the goal of true communication with the client may be the only corrective that is necessary. The act of refocusing alone may be all that is needed to ensure quality interaction.
Articles and Chapters
Jean Koh Peters, Habit, Story, Delight: Essential Tools for the Public Service Advocate, 7 Wash. U.J.L. & Pol’y 17, 19-20 (2001).
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).
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).
Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 Clinical L. Rev. 33 (2001).
Jean Koh Peters, Representing the Child-in-Context: Five Habits of Cross-Cultural Lawyering (PDF), Reprinted from Representing Children in Child Protective Proceedings with permission. Copyright 2007 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved.