Brief Description
Like the proverbial straw that breaks the camel’s back, any one of a multitude of stressors can become the final factor which leads the lawyer to a cross-cultural mistake. Habit Five addresses the inevitable moments when the lawyer blunders cross-culturally. Habit Five, The Sadder but Wiser Habit, looks retrospectively at a problematic moment to determine what factors led to a cross-cultural mishap, and to eliminate those factors in the future. These factors can include implicit bias and structural problems in the workplace as well as other stresses that can lead lawyers to the breaking point. Simply put, the overloaded and overwhelmed lawyer is much more likely to act on implicit bias or ingrained stereotype. The call to self-awareness and self-inquiry, as well as nonjudgment directed towards oneself that Habit 5 encourages, may be more likely to occur if the lawyers understand that implicit bias occurs across society and is not an individual failing. The true failing occurs when lawyers fail to function more intentionally and strive to eliminate bias.
Introducing Habit Five
In the video above, we hear about an interaction a lawyer has with her client. The client is a woman with a horrible story of severe violence. This is their first meeting. The lawyer has had very limited time to prepare for trial because the client lives out of town and the lawyer has just returned from vacation. When they meet, the client is talking in a rambling fashion. Extremely stressed about the time pressure and about listening to the client recount the horrible rapes that she had suffered, the lawyer falls back on very disturbing old conditioning. She finds herself feeling negative and aggressive towards her client and later wonders if it’s because the client was a different race, because the client was overweight, because the client “talks too much.” For Jean, this was actually the origin story of Habit Five—working through this moment led Sue and Jean to develop recommendations for working through cross-cultural mistakes generally. What is the lawyer to do with these reactions? How can the lawyer prevent biases and stereotypes from coming out and affecting her interactions with her clients?
In giving the vignette of this lawyer, we hope to communicate that this lawyer, like all others, brings biases and stereotypes to the attorney-client interaction but could take certain steps to lessen the impact of these biases. For most of us, when experiencing the anger that the lawyer feels, the hard part is first, examining a mistake one would just as soon forget, and second, recognizing that our reaction to the client could well stem from bias rather than justified anger. Habit Five asks the lawyer to acknowledge her every thought, including the ugly ones, and find a way to investigate and control for those factors that influence lawyering in unacceptable ways.
Research indicates that we are more likely to fall prey to stereotype when we are feeling stress, pressed for time, and unable to monitor ourselves for bias. Thus, Habit Five suggests that lawyers take simple proactive steps to lessen stress, including the type of stress the lawyer in the above example feels. This could mean something as simple as taking a break, having something to eat, hydrating, and identifying what is interfering with the interaction with the client before the interview resumes. By taking these simple steps, the lawyer will gain a greater capacity to monitor and hopefully avoid a biased reaction. Habit Five thinking asks the lawyer to engage in self-examination rather than self-judgment. By engaging in this reflective process with nonjudgment, the lawyer is more likely to develop insights, safeguards, and self-care that will consistently help him/her respond to and respect the individual client.
Example Lesson Plan for Habit Five
Goals
- Students learn how to start implementing Habit 5
- Students understand that when there are breakdowns in cross-cultural lawyering:
- they can take the form of micro-aggressions and negative interactions,
- they can productively be investigated in a nonjudgmental way, and
- they can be mitigated with self-reflection and self-care.
Introduction (2 minutes)
Habits Three and Four have taught us how we can make incremental changes in hopes of becoming better cross-cultural lawyers. Still, there are inevitably times when we will make a mistake, have a bad interaction with our client, or have some sort of breakdown in our ability to effectively execute cross-cultural lawyering. Habit Five, the Camel’s Back, provides us with space and vocabulary to investigate those breakdowns with nonjudgment. When implemented consistently, Habit Five encourages us to develop practices and routines that prevent breakdowns and make cross-cultural lawyering easier.
Jean’s Story (6 minutes)
Watch video of Jean.
Mistake Reflection (3 minutes)
With Jean’s story as an example, have every student to take a couple minutes to reflect and take notes on a mistake or breakdown in their experience. It could be an experience in clinic or in their professional or personal life. Ask students to think about the details of the incident—who was the breakdown with, what was going on that day/week/month, what exactly was triggering, was there a specific microaggression that they reverted back to.
At the start of this reflection, emphasize to students that the details of this will not be shared with the class. Encourage students to be as open and honest as possible.
Reflection and Nonjudgment (2 minutes)
It can be incredibly difficult to reflect on past mistakes. We might feel shame, embarrassment, or helplessness. Habit Five asks that we reflect on mistakes even though it may be hard, but to do so with nonjudgment. If we can put aside self-judgment, then we can consider the breakdown and see if there is anything we can do to prevent a breakdown from happening again. When we get past negativity, we can identify what factors are contributing to our stress, impatience, and anger.
Collaborative Brainstorm (5 Minutes)
Now, ask students to make a list of all the things that contributed to that breakdown on the other side of the note card. Some examples may include poor diet, lack of sleep, triggered by certain demographic, no exercise, family trouble, relationship trouble, or a general feeling of sadness.
Then, go around the room and have every student share a factor that contributed to or could have contributed to their breakdown. Encourage students to be creative in their answers. Write each factor down on a board so that all students can engage with the factors identified. Habit Five teaches us to ruminate on these factors to find lasting ways of mitigating them.
Finally, as a class, brainstorm ways to mitigate the factors identified. Ask students to think of ways they prevent these factors from affecting their work going forward. Write down ideas on the board. If unable to finish, ask students to finish their list of factors and mitigation habits in their free time.
Wrap Up (1 minute)
What we practiced today—reflecting on a mistake, investigating causes, and brainstorming solutions—is a way that you can implement Habit Five in your work continuously over time. If there is one take away from this lesson, it would be to not let shame prevent you from investigating your mistakes. Enter reflection with nonjudgment and know that there is hope in being a better cross-cultural lawyer when we take care of ourselves.
Teaching and Habit Five
Once this framework for Habit Five is laid in the classroom, Habit Five conversations are more insightful for students when they are applied to the student’s fieldwork. This exploration might be accomplished by discussing whether the student’s behavior or thinking would be different if the characteristics of the client changed. The challenge here is to strike the right balance of support and challenge in the conversation with the student. Ideally, the goal is to provide the students with sufficient support and information so that they can challenge themselves with curiosity, without judgment, and with hope for improvement. One way to do so is to acknowledge our own assumptions and biases when they occur in micro-interactions and get used to figuring out concrete ways to act without bias in the day to day.
An essential component of Habit Five is to address one’s own bias and stereotyping in a non-judgmental way. In teaching the Habits, remember to set a similarly non-judgmental tone in the classroom. For example, if a teacher starts teaching Habit Five with a video like the one above, and is not careful, the teacher can inadvertently create a judgmental atmosphere by critiquing the video harshly. (In her early teaching, Jean was certainly prone to this, very much undercutting her message of non-judgment towards self!) It can be easy to pay less attention to the positive aspects of a performance or forget to frame criticism in a positive manner when the performers on the video are not students in the class. Yet, students often see themselves in those in the video and respond to the criticism as if it were them. Thus, it is important to build an atmosphere of support and challenge that includes the person in the video as well.
Another critical component of teaching Habit Five is recognizing and acknowledging issues of socioeconomic status, race, gender, sexual orientation, and more. Teachers must work to remove barriers to having conversations about race to be able to meaningfully engage with Habit Five. Students must learn to see how racial bias and privilege work to reinforce a system of injustice. Teachers must aid student in recognizing issues of individual and systemic racial bias in their clinical work, as they employ the Habits to examine their own actions and assumptions. Developing this level of understanding is not always easy. Still, whether we are teaching students through classroom conversations in seminar or rounds or case conversations in supervision, these conversations about race lay the groundwork for students to be able to reflect with nonjudgment on their own biases and privilege as a part of Habit Five.
The goal is to provide the students with sufficient support and information so that they can challenge themselves. One way to do so is to acknowledge our own assumptions and biases when they occur. We can model close examination of our own actions and mistakes with nonjudgment. We can also take moments when the students err as moments to offer Habit Five as a method for retrospection. Students are often very harsh on themselves. Teachers and supervisors can ease their distress by putting the blunder in perspective and reminding them that nonjudgment begins with ourselves. Focusing on the future is a constructive way to gain insights about one’s self, move past the blunder, and protect this and other future clients from this mistake in the future. As a result, Habit Five is often taught in the field, or in supervision, as students deal with their first experience of making professional mistakes. Fortunately, having made so many ourselves, we are a font of experience in this regard!
A Student-Teacher’s Perspective
In teaching Habit Five, I was concerned that I would not be able to underscore how important self-care is to not just being a good lawyer or advocate, but to maintaining cross-cultural competency. We can all understand that we are not our best selves when we are tired or hungry, but it was not clear to me until I learned Habit Five how prone we all are to backsliding into bias and stereotyping when we don’t take care of ourselves. When teaching Habit Five, I wanted to make sure that I emphasized that self-care is not just something we do to make ourselves feel better—it is a fundamental and critical aspect of effective cross-cultural lawyering. Brainstorming with students ways in which we could take care of ourselves and prevent a backslide into bias helped me stay positive about my ability to work effectively with clients despite the challenges of cross-cultural lawyering.
Habit Five and the Other Habits
Many teachers who have looked at the Habits wonder why we do not start with Habit Five which involves exploring oneself as a cultural being. We leave it until last because this Habit can be the most difficult in that it asks the student to face the sometimes ugly side of cross cultural lawyering—bias and stereotype. Moreover, the other Habits give insight and understanding that may ultimately help students recognize bias.
Habit One and Habit Five go hand in hand. Habit One identifies elements that may shape our reactions and understandings of clients. Habit Five asks students to engage in careful self-examination to surface assumptions and recognize some of the more pernicious effects of bias and stereotyped thinking. Students need to understand concepts like implicit bias and ethnocentric thinking to comprehend the ways that all people can misjudge, mishear, and use their power inappropriately. Lawyers of all identities have privilege and those with white privilege, male privilege, hetero-privilege, class privilege may fail to see how this shapes their views. For the most advantaged, privilege, like culture is often invisible.
Habit Five mistakes often happen when lawyers move away from the insights of Habit Two, and its primary focus on improving the legal claim of the client. Thus, Habit Two may often serve as a useful corrective to Habit Five—after a mistake, use Habit Two to help you redouble your efforts on the case and to keep the most important issues in perspective.
Parallel Universe thinking is critical to Habit Five. Lawyers can remind themselves that they deserve parallel universe thinking too; the lawyer’s first instinct about why they erred may be both too harsh and too inaccurate to be helpful for future improvement.
Here is a short TED style talk in which Jean discusses Habit Three and Habit Five in tandem:
And Habit Four often provides the context for Habit Five, while Habit Five can aid Habit Four analysis. Miscommunications with clients can be extremely painful and hard to problem-solve without Habit Five’s call to nonjudgment and patience with examining tough moments in close factual detail.
Habit Five and Vicarious Trauma
Jean often teaches Habit Five and her class on Vicarious Trauma in quick succession, noting the connective tissue: self-care empowers the lawyer to offer her best service.
Habit Five in Practice
Habit Five encourages lawyers by capitalizing on the moment of mistake to monitor consciously for biased thinking by identifying potential stereotypes that might apply to the situation, by improving the context in which decisions are made, and by identifying clear criteria to apply to facts. Researchers have found that we can reduce biased thinking if we pay attention to differences rather than ignore them. When we intend to eliminate bias rather than ignore difference, we are more likely to make decisions based on fact. People are less likely to use an intentional, self-aware approach when they are tired, stressed, in emergency, or other distracting situations. Thus, Habit Five encourages lawyers to pay attention to their emotional state when trying to eliminate biased thinking, heartened by the fact that a small change could make a big difference. Before encountering a client, a lawyer can take mental stock: “well, I’m tired and a bit hungry— perhaps if I get a cup of coffee and a snack, I’ll be more attentive.”
Jean’s Thoughts on Habit Five and “Grace”
After years of teaching Habit Five, a thoughtful student noted how Habit Five promotes grace. We all err, we all falter, and so many times, our mistakes, thankfully, do not lead to disaster—lucky timing, other complications, or a forgiving actor can help render our error harmless. When a client or opposing party with every right to be offended or antagonized shows us compassion, even nonjudgment, and overlooks our blunder, we experience the grace of the better world we are all seeking. When we are next the object of a microaggression or cross-cultural blunder, we too can consider forgiveness and showing grace as an option. We of course do not advocate for accepting sustained systematic bias shown against ourselves. But I have been humbled to realize as a woman of color growing in status in this profession that while I developed as a professional acutely aware of microaggressions directed towards me, I am now so steeped in privilege that I am much more likely to commit microaggressions than receive them. Even as we seek to make the world more just, I sincerely hope the world will become more gracious as well. Experiencing the grace of Habit Five and being willing to extend it is yet another invitation of this Habit.
Summary Points
- Habit Five can help a lawyer identify and prevent factors in their control from adversely affecting the client relationship.
- Habit Five encourages the lawyer to examine and tweak daily life to create settings in which bias and stereotype are less likely to govern.
- Habit Five promotes nonjudgmental self- reflection and change of perspectives with a goal of eliminating bias.
Further Resources
Below are some materials on the Habits, with page numbers indicated for discussions of Habit Three.
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) 360-361.
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) 59-60.
Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 Clinical L. Rev. 33 (2001), 77-78.
Jean Koh Peters, Representing the Child-in-Context: Five Habits of Cross-Cultural Lawyering, 296-301.