Chapter Three – Building a Relationship: Understanding Yourself and Others

Learning Objectives

After working through these lessons and practicing the skills presented, you will be able to:

• Employ techniques to build rapport.
• Define false consensus effect and describe why it is important to be aware of similarities and differences between you and your client.
• Describe some common differences among people in preferred communication styles.
• Define implicit bias and explain how it can cause us to make unfair judgments about people.
• Identify and use tools to increase your understanding of yourself and your clients.

An interview is more than simply a way to transfer information from one person to another or to sell our legal services. It is how we form and build the fiduciary relationship of attorney and client. The first part of the interview, then, must be devoted to building trust.

Before we look at the details of the interview process, it is helpful to establish a framework for understanding more about people in general and the factors that shape human relationships.

Pre-reading Reflection

Think about a time when something very difficult or hurtful has happened to you and you needed some help responding to the situation. Answer the following questions.

 

A. How do you build trust with a client?

A primary objective in an initial interview is to establish rapport and trust with the potential client. Rapport is a relationship in which a client feels that you are genuinely concerned for them and will accept their experiences and perspectives without judgment. When rapport exists, information flows freely and there is mutual trust.

An effective initial interview requires this mutual trust. At a fundamental level, you and the individual seeking your services must each trust one another first as people. No matter how competent potential clients believe you are, they must also believe that you care about them enough to be trustworthy in exercising that competence on their behalf. Similarly, you must be able to trust that the individuals you choose to represent will be honest and cooperative. In addition, both you and the client must trust that you are competent to represent them. Early in the interview, both attorney and client will be asking themselves questions to determine how much trust to invest in the other.

The following chart outlines some of the questions that go to both personal and professional trust:

Attorney must trust the client	Client must trust the attorney
Personal trust: Who is this client? Can I trust them? Will they judge me?	Personal trust: Who is this attorney? Can I trust them? Will they judge me?
Professional trust: Do I know what I am doing? Can I help them?	Professional trust: Does this attorney know what they are doing? Can they help me?

What are the conditions that make it more likely that clients will trust you or that you will trust them? According to Psychologist David DeSteno, several factors will influence how easily one individual will trust another.^[1] One factor is an individual’s personality. Some people simply are more trusting than others. An individual’s experience will also shape their likelihood of trust. If a client or people close to them have had negative experiences with attorneys, trust will be more difficult to build. Likewise, your own experience with prior clients will influence your likelihood of trusting future clients.

Trust is often higher between individuals who share similar values, beliefs, and backgrounds. This is one of the reasons that diversity in the profession is so important to access to justice. Even with very different individuals, trust increases with familiarity. Accordingly, some patience is called for as trust needs to be built over time.

Some factors correlated with increased trust are especially important in the attorney-client relationship. Interdependence increases trust. When individuals rely on each other to achieve common goals or outcomes, trust tends to be higher. While many attorneys and clients might view dependence as one-sided, you can facilitate a client’s view of the relationship as interdependent by emphasizing the need to work together as a team, marrying the client’s expertise in their situation with your expertise in the law. Trust flourishes in these relationships when there is mutual respect and recognition of each other’s capabilities and contributions. Similarly, trust is enhanced when individuals perceive that they share common goals or interests. Clients who perceive that your goal is to help them achieve their goals will more readily trust you.

Transparency and consistency are important to trust. Clear systems of accountability and transparency can increase trust by providing assurance that your actions are monitored, and consequences are in place for violations. This is one reason that you may wish to note you are subject to rules of professional conduct in your representation. Likewise, consistent behavior over time builds trust by demonstrating reliability and predictability. The importance of consistent and clear communication with clients is critical for building trust.

The most essential trust-building elements are not skills but attitudes. Building effective rapport requires an affect that is client focused. If you want your clients to give you their trust, you must give them your non-judgmental attention. Techniques and skills that can help you manifest this attentiveness are of little value if they are not accompanied by a genuine concern for your client. Indeed, without a genuine concern for your client, these techniques may appear insincere and clumsy at best and deceptive and manipulative at worst.

Accordingly, to build rapport with your clients, you must sincerely want to know who they are, and you must genuinely care about their goals and concerns. That means you must suspend your ego and focus on the client. You must want to truly know and understand what the speaker is saying, not what you think they should be saying. Your primary purpose must be to understand the other person—their feelings and ideas from their own unique experience.

Reflective Practice

Read the profiles of the three clients below. Consider your own identity, values, and strengths. For each client, reflect on how easy or difficult you might find it to establish trust. What is one thing you could say or do with respect to each client to help foster a relationship of trust?

Client #1 – Patent
Name: Karen Davis
Age: 50
Occupation: Financial advisor
Case Details: Karen has created a software program that she believes will revolutionize financial advising. The program creates a profile of clients based on a background search of all publicly available data (including social media posts, etc.) to create a risk assessment score and targeted investment profile. Karen is excited to explain how her program will revolutionize her work and will give her a significant advantage in her business by cutting down on the time she must spend getting to know her clients. She wants you to obtain a patent and advise on any risks involved in using the product to identify prospective clients.

Client #2 – Divorce
Name: Maria Hernandez
Age: 35
Occupation: School Teacher
Case Details: Maria is seeking a divorce from her spouse, with whom she has two young children, ages 3 and 5. She is concerned about custody arrangements and ensuring a stable environment for her children. Maria’s spouse has been uncooperative, making the situation more stressful for her. English is Maria’s second language.

Client #3 – Criminal Defense
Name: Laura Peterson
Age: 37
Occupation: Nurse
Case Details: Laura has been accused of prescription fraud. She has no prior criminal record and is highly anxious about the potential impact on her career and reputation. Laura is detail-oriented and prefers to be kept informed about all aspects of her case. She is wary of legal professionals due to a negative experience with a previous attorney in an unrelated matter.

 

B. Why should you pay particular attention to building rapport at the beginning of the interview?

Rapport building begins from the moment the client arrives. Think about the messages your office sends about your competence and caring. You can communicate a great deal about yourself and your practice by the décor you select, what you hang on your walls, and the arrangement of furniture in your office. Make sure those are intentional messages.

Extend basic hospitality. If your client’s first encounter at your office is with a member of your staff, ensure that you select and train these staff members to be attentive. Make sure seating is comfortable. Offer a beverage. Begin your interview on time. Pay close attention to your nonverbal communication. You will be exchanging important information from the very beginning of an interview by attending to both your own and your client’s non-verbal cues. As we have discussed in choosing the mode of the initial meeting, the content of most communication is conveyed nonverbally. Adopt an open posture, face the client, and maintain eye contact. Learn to adopt a pleasant and accepting facial expression. Now is not the time to begin taking extensive notes or reviewing a checklist. One of the important reasons to gather preliminary information in an intake procedure is that it permits the attorney to focus the initial stage of the interview on establishing rapport. In your demeanor with the client, create an effective first impression, one conducive to establishing a relationship of trust.

Frame the beginning of the interview using a “person-first” approach rather than a “client-first” approach. Begin your interview by introducing yourself. For most clients, engaging in some “small talk” or “getting to know you” conversation helps establish rapport. However, don’t engage in small talk without purpose. Be genuinely curious about the client and care about their circumstances. Small talk can communicate this attention and care. Did they have any trouble finding the office? How are they finding the weather? Ask about family, employment, or hobbies. In other words, take a few moments to get to know the individual with whom you are meeting before you turn to engaging with them as a prospective client. The best way to do that is to ask questions and to listen.

How quickly you move from this more general conversation into the prospective client’s legal matter will depend largely on the client and your local culture. Be sure to follow your client’s lead. Different individuals have different understandings of the content and length of greetings. Some clients may view you as rude and uncaring if you begin the interview without engaging in some “getting to know you” talk. Other clients may feel you are wasting their time and will want to get right to the business of discussing their legal concerns. Clients who are incarcerated may want to discuss the immediate concerns of their confinement before they discuss their legal case. Sophisticated legal consumers may want to hear about your qualifications to assist in their matter before they begin to disclose sensitive information. Often an open-ended, “How can I help you?” or “Do you have any questions before we get started?” can provide an opening to determine the client’s greatest need or concern.

Professor Marjorie Corman Aaron provides an interesting additional perspective on these opening conversations:

One final piece of advice on this topic: don’t let chit-chat render you deaf. Research conducted in physician-patient interviews establishes that the first words uttered by the patient are often keys to what is troubling them. Thus medical residents and physicians are now advised to scribble a note about the very first words out of the patient’s mouth. Research also suggests the client’s first words upon meeting with his lawyer tend to be significant, revealing emotions, worries, and the meaning or impact of his legal problem for the client. “I’ve been waiting so long for this day.” “It’s been so hard to get here. Finally, we’re going to get what’s ours.” “Hello Ms. [Attorney] Smith, I hope you’re ready to handle a pressure-cooker of a problem,” may come out within initial chitchat phase. I agree with the doctors’ prescription – make it a habit to write down your client’s first words or early phrases. They may be telling, and worthy of a later look.^[2]

Help the prospective client to feel comfortable with the interview by providing a roadmap. Let the client know how long the interview will last, what you hope to accomplish during the interview, and, if relevant, any charge for the consultation. Knowing what to expect will place your client at ease and motivate them to share information with you freely. If the client has anxiety associated with fear of the unknown, this effort to help the client know what to expect may help alleviate some of the anxiety the client is feeling. If the client has fears about loss of control and is anxious because they are concerned that retaining a lawyer may start a series of events over which they will have little control, discussing the decision-making opportunities the client will have (whether to hire the attorney, whether and how to pursue information gathering, whether and how to pursue problem resolution) may help assuage this anxiety. This is also a good point at which you can explain your duty of confidentiality to the client, so that they can feel comfortable fully disclosing their situation. This is an especially important point at which to emphasize that the purpose of the interview is to decide whether your client’s legal issue is one with which you can help and for the client to decide whether they would like to engage your assistance.

In addition to getting to know the client, help the client get to know you. Let them know if you have particular experience or expertise in the type of matter they have brought to you. Some attorneys like to include a brief description of their philosophy or approach to the attorney-client relationship. However, how you attend to your client, your preparation and organization, the questions you ask, and assistance you provide all will prove your competence far better than a description of your experience, expertise, or skill.

Skill Practice and Reflective Practice

Schedule a 15-minute appointment with your professor or with a classmate whom you do not know this week. Practice the skills of focusing your attention to the speaker and the message. You need not pretend this is a client interview; rather, you can simply take the opportunity to practice getting to know another person. After your meeting, prepare a brief reflection on your comfort with this kind of introductory small talk.

 

C. What are some important differences among people that can lead to misunderstanding?

How do we better understand ourselves and others? In this section, we will examine characteristics that influence how a person communicates and relates with others.

Our human tendency is to assume that most people see and interact with the world in the same way as we do and that others agree with our opinions and perspectives.^[3] These biases, sometimes referred to as the “false consensus effect” can create significant misunderstandings and barriers to communication. Researchers point to a number of factors that reinforce these biases. First, most people today tend to spend time with people who are like them. We need to be especially aware of this tendency today, as more people live, work, and communicate in communities of cultural, political, age, race, and class isolation.^[4] Second, our self-esteem is enhanced when we believe that our opinions and behavior are common or within the norm rather than exceptional.^[5] Third, we are more familiar with our own attitudes and behaviors. Thus, we tend to notice and recognize these attitudes and behaviors more readily in others. (This is another type of cognitive bias, called the availability heuristic.^[6] We tend to base our estimates of how common or probable something is on readily available information.) Finally, the false consensus effect tends to be stronger in situations in which we are especially confident of our opinion or believe very strongly that we are correct.^[7]

Understanding these biases and how they affect our beliefs and actions is very important in building an effective attorney-client relationship. Rather than automatically assuming that our clients are like us, we must be able to recognize differences in communication styles, experiences, outlooks, and values.

1. Differences in communication styles

The judgments you and a prospective client will make about each other in the initial interview are grounded in your communication with one another. Your client and you may have very different preferred communication styles.^[8] It is easy to misread these stylistic preferences and draw inaccurate conclusions from these differences. In this section, we will consider several different aspects of a communication style. As you read about each, consider the following questions:

• How would you describe your communication style on each of these aspects?
• Does the legal profession have a preferred communication style?
• What kinds of assumptions might you make about someone whose communication style differs from your own?
• How can you manage that bias?

Formality

Individuals vary in the preferred degree of formality or distance. Watch and follow the lead of your client regarding formality. For example, in the past, etiquette would suggest that you offer your hand for a handshake. The pandemic has now made this gesture ill-suited for more people. For some cultures, a handshake has never been appropriate. If, for example, your client is not the same gender as you and their religion frowns upon cross-gender touching, you will be placing your potential client in a most uncomfortable position by offering your hand when they must decline the handshake.

Likewise, in choosing how to refer to a client, it is usually best to err on the side of formality at first. Use your client’s last name and only using first names if you get permission. That might look something like this: “Welcome. Please have a seat. I’m Barb Glesner Fines. You must be Jane Doe. How do you prefer to be called: Ms. Doe? Jane?” If the client suggests first names, you can confirm that you too are comfortable with first names. If they prefer more formality, still give them the option for how to refer to you. Repeat the client’s name as they prefer to be called. This can be especially important for clients who have frequently experienced disrespectful treatment because of their minoritized identity or their life experiences. Approaching an initial interview with a casual or overly friendly affect may signal disrespect rather than a desire for connection.^[9]

Likewise, in your language use, err on the side of formality. Speaking in an overly casual or excessively informal way can indicate a lack of respect.^[10] That doesn’t mean you need to “speak like a lawyer” with jargon and inflated diction. Just as plain English in writing is critical to understanding, so too, you must be able to communicate in a way that your client will understand.

Tone, volume, and speed of speech

Individuals vary the volume, rate, and tonal variety of their speech. The degree to which pauses and silence are comfortable or uncomfortable varies among individuals as well. Some of this difference may be because of the meaning of silence, which can vary in different cultures. Some of this is a function of personality. For example, extroverts generally prefer to think out loud whereas introverts generally prefer to gather their thoughts before sharing them. If you and your client do not share the same default speaking style, you can easily draw mistaken assumptions about the speaker or misunderstand the meaning of what they are saying. For example, compare these two speakers and the assumptions one might make about them because of these differences.

A speaks loudly, quickly, and with varieties of  pitch, intonation, and expressiveness. A fills any pauses or silence quickly.	B prefers quiet voices, a slower pace, and flat tone and expressiveness. B pauses more often while speaking and is less likely to fill silence.
A views others who share their conversational style as open, honest, and easy to understand. A may view B as shy, reluctant to share, and lacking in confidence or even competence.	B views others who share their conversational style as mature, even keeled, and rational. B may conclude that A is rude, aggressive, and immature.

Eye contact

You have probably been told that maintaining eye contact is an important part of non-verbal communication. Research shows that when you maintain eye contact with a listener, the listener is more likely to perceive you as confident and intelligent, is more likely to have positive feelings about you, and is more likely to remember and believe what you have said.^[11] However, eye contact, like so many other aspects of nonverbal communication, is highly contextual. For some neurodiverse individuals, for example, eye contact during face-to-face conversations can make it difficult to hear and process information and can even be physically and psychologically painful.^[12] Likewise, some cultures consider eye contact either while speaking or while listening to be rude, aggressive, or a sign of dishonesty.^[13] Thus, maintaining eye contact with your client is generally a good idea in most circumstances. However, you should monitor for signs of discomfort with your gaze, and refrain from drawing quick conclusions based on a client’s eye-contact patterns.

Expressiveness and self-disclosure

Individuals differ on the degree to which they are “open” or “closed.” Expressiveness refers to the degree to which an individual openly conveys their inner thoughts and feelings, either through facial expression or speech. Similar to expressiveness, individuals and cultures vary in the degree to which self-disclosure (talking about difficult personal situations) is considered appropriate. These differences often reflect one’s culture,^[14] gender,^[15] and personality.^[16] Even in cultures that value high expressiveness or self-disclosure, the appropriateness of sharing emotions or problems may depend on the relationship between speaker and listener.

C’s facial expressions, gestures, and speech are often emotive and spontaneous, sometimes even exaggerated to make a point. C freely shares emotions and takes emotions into account in making decisions.	D minimizes the expression of emotions both non-verbally and in speech. Reason may influence D’s behavior more than feelings.
C may view others high in expressiveness as open, charismatic, and authentic. D may view C as immature, volatile, and attention-seeking.	D may view others who are low in expressiveness as cool, in control, and rational. C may conclude that D is cold, uninterested, or unable to understand.

Context and directness

One frequently noted difference in communication styles is the degree to which context is necessary to understand meaning. Low-context communication allows one to gain meaning primarily from the speaker’s explicit words. Low-context communicators tend to prefer verbal directness. High-context communication conveys meaning more implicitly, through subtle verbal cues, silence, and other non-verbal cues. Research examining how individuals in different cultures and languages make requests is especially interesting as an example of preferences regarding directness. In some cultures, direct requests are appreciated as efficient and honest, while indirect or more subtle requests are interpreted as a “waste of time” and even “devious and manipulative.”^[17] In contrast, other cultures may see a direct request as a rude imposition, putting the other in a position that makes it difficult to say no. Since the attorney-client interview involves multiple requests for information, advice, and assistance, attorneys should be alert to their own and their client’s preference for directness.

Some researchers suggest that the degree to which an individual or culture’s value system prefers collectivism or individualism relates to whether communication is high- or low-context. In a collectivist culture, relationships are central and these cultures prioritize respectful communication that builds rather than disrupts these relationships. Individualistic cultures value freedom and autonomy of the individual. Because these cultures also tend to value diversity, low-context communication may be preferred in order to avoid misunderstanding.^[18]

Reflective Practice

Review the differences in communication styles above. Reflect in writing on your own communication style by answering the following questions.

 

2. Differences in experiences and bias

In addition to these differences in communication styles, attorneys and clients have very different identities and experiences. Here, too, cognitive biases can lead attorneys to make assumptions that are inaccurate or even unfair.

Nobel Prize Laureate Dr. Daniel Kahneman, Professor of Psychology and Public Affairs at Princeton, has spent decades researching how our brains work.^[19] Dr. Kahneman explains that our brains have two modes of thought. Fast thinking includes all of the things we do automatically without even “thinking” about it. For example, when you see your best friend on the street and you instantly recognize them, that’s your automatic, intuitive system at work. When you see your friend and it instantly brings a smile to your face, that’s another example of fast thinking. You don’t have to do anything to recognize them or experience that moment of happiness. Our emotions are grounded in fast thinking. Indeed, emotions can close off any other kind of thinking. Every law student who has been called on in class and is nervous about speaking or is ill-prepared can tell you that fear makes it impossible to think! Fast thinking is automatic, subconscious, and prizes speed over accuracy. In contrast, slow thinking is deliberative and logical, and it takes effort. But it is far less prone to error than fast thinking.

The majority of our thinking is fast thinking. Our brains process 11 million bits of information every second. But we can only consciously process 16 to 40 bits. So, our unconscious, fast-thinking, error-prone brain is in the driver’s seat most of the time.

There are hundreds of ways in which our fast-thinking brains deal with four basic problems: ^[20] First, our brain has to take in too much information—remember 11 million bits per second. We need shortcuts and rules for filtering out the barrage of information we are constantly receiving. Second, that information comes in as raw meaningless data—our brains have to have some way of assigning meaning, even when meaning is vague or missing. Third, we need to act on all this data often instantaneously. Of all of the information we take in, which will we prioritize in determining our response? Our brain has shortcuts and rules—heuristics and biases—for this problem too. Fourth, our brains have to encode all this data into memory. Imagine if your computer did not have a system of files or folders or search algorithms but was simply one gigantic data file. Our brain needs some structure for memory just like our computers. Thus, our brain simplifies, condenses, generalizes, and organizes that data. And these structures and stories and generalizations we use to store information then affect how we take in new information.

As necessary as these fast-thinking shortcuts are, they are not always accurate and sometimes are exceedingly harmful, especially when it comes to making judgments about people. When we make judgments about people, our cognitive biases lead us to fill in the blanks of our understanding with subconscious associations we have developed between concepts (e.g., Black people, old people) and evaluations (e.g., good, bad) or stereotypes (e.g., athletic, clumsy).

Where do these associations come from? Everywhere—from our experience, our media, our education. We place labels on people in order to make sense of the world. And we carry labels ourselves. These are part of our identity and affect how we think about ourselves and how others think about us. Social identity dimensions include age, body type, citizenship status, disability, education, ethnicity, family structure, gender identity, gender expression, language, mental health, race, religion, sexual orientation, and socioeconomic status, among others. Attorneys share a professional identity—the content and culture of which they have learned from the time they first understood there was such a thing as a lawyer through the intense socialization process of law school and the first years of practice.

No matter how strong our explicit commitments to impartiality might be, we all carry assumptions and stereotypes that our fast-thinking brain uses to judge people. These implicit biases that we have developed over our lifetime may not necessarily align with our declared beliefs or even reflect stances we would explicitly endorse. For example, in the 1960’s some of the most popular television series were premised on southern/hillbilly stereotypes that today are cringeworthy.^[21] Most people who grew up on these television series would never espouse ideas that poor rural white folks are ignorant and simple, yet hours of television programming reinforced those stereotypes. Likewise, we learn lessons from an early age about men and women, people of color, people with disabilities, young and old, gay and straight, or people with different faiths. In addition to developing stereotypes about people different from us, we all have a strong cognitive bias that causes us to favor people who are more like us. That in-group, or familiarity bias, can be even more powerful than any out-group bias we may hold.

We cannot change the fact that our brain needs biases to operate. But, with conscious and regular work, we can uncover and interrupt cognitive biases and heuristics that are unfair or harmful. Our brains are incredibly complex, and the implicit associations that we have formed can be gradually unlearned through a variety of de-biasing techniques.

Understanding our own implicit biases begins with identifying them. There are a variety of tools one can use to uncover bias and reduce the tendency toward unfair and inaccurate judgments. One tool is the Harvard Implicit Association Test (Project Implicit). These are online tests that are designed to measure implicit biases in about 28 different categories. Since 1998, more than 20 million people have taken the Implicit Association Test (IAT), an online assessment at the Project Implicit website (implicit.harvard.edu). The data from these studies point to the pervasiveness of implicit biases. For example, more than 80 percent of people who completed the IAT related to age bias exhibited an association between older people and negative judgments. In addition, about 75 percent of White and Asian respondents demonstrated an implicit bias in favor of White persons compared to Black persons. Of course, understanding that you have a negative or positive implicit bias doesn’t necessarily predict your behavior nor does it mean you can’t work to de-bias your shortcuts, but it is a thought-provoking and useful starting point.

A second tool is to educate yourself about how bias operates in practice. Some aspects of our identity give us an advantage in certain situations. On the basketball court, being tall is an advantage. In a submarine, it is not. Some aspects of our identity give us power or advantages. Being an adult gives us power and advantage over being a child in most situations. We have all experienced some situations in which our identity was an advantage and other situations in which our identity marginalized or disadvantaged us. Our individual histories and identities are layered within the political, economic, and social histories of those who share our identities. Legacies of bigotry, hatred, and oppression of minoritized communities leave their mark. Attorneys have a special obligation to be aware of this history and the role of law in both reinforcing oppressive systems and ensuring equal justice.

An individual whose identity doesn’t fit the dominant identity in a particular setting often faces similar patterns of bias. Suppose for example that you represent an engineer who was discharged from her employment. Women in male-dominated fields often find themselves trying to balance between being seen as too feminine to be competent, and too masculine to be likable. Professor Joan C. Williams, a Distinguished Professor of Law at University of California-San Francisco and expert on social inequality, refers to this as “The Tightrope.”^[22] When some aspect of our identity clashes with the behaviors required by our work, we are forced to walk a tightrope, constantly checking and balancing our behaviors. Moreover, Professor Williams’s research and the caselaw in discrimination cases reveals that these women often find that they must prove themselves over and over again, a phenomenon Professor Williams terms the “Prove it Again” bias.^[23] Any person whose identity doesn’t fit the dominant culture of their workplace may face these biases. How will being aware of these biases impact your representation of your client?

Yet another impact of bias is characterized as “masking” or “covering.”^[24] There are various ways in which one might change in order to fit in: We might alter our appearance. We may avoid behaviors associated with our identity in order to negate stereotypes or unconscious biases. We might decline to speak up against biased behavior against ourselves or others like us to avoid seeming overly sensitive. Finally, we might avoid contact with individuals who share our identity in order to avoid calling attention to that identity.^[25] Expecting people to suppress parts of their identity to avoid stigma or unfair treatment can be a barrier to their ability to be authentic and feel included. We have all experienced a situation in which we have been outside of what is considered standard or conventional in our culture or region in one or more ways. That means we have all likely felt pressure to change some aspect of our behavior in order to fit in. When this demand is constant and requires us to alter some core aspect of our identity, it can be harmful to our sense of self. At a minimum it is exhausting. It can impact our work and our relationships.

Being aware of pervasive negative biases that some of our clients may have experienced throughout their lives is critical to being able to build trust. The skills of listening, empathy, and reflection we develop to become competent interviewers and counselors are also critical skills for cross-cultural competence. Professor Paul Tremblay suggests that, in some circumstances, having a conversation with your client about your racial or cultural differences can help to bridge these differences. He acknowledges the challenge of these conversations:

For many of us conversations about difference will be difficult, but a lot of professional learning will be challenging. If you share that discomfort, your effectiveness may hinge on your developing comfort with this skill. In appropriate circumstances, by acknowledging the effect of racism, sexism, or other injustices on the problems your client has come to you with, or by asking about the ways he sees oppression and the exercise of privilege as having influenced his story, you can begin to reduce the mistrust that a culturally different client may feel in the professional relationship.^[26]

Sometimes thinking of the client means recognizing that you may not be able to bridge those barriers without help. In his article on providing competent defense in capital punishment cases, Professor Sean O’Brien discusses the many reasons that developing mitigation evidence is a challenge.

A competent mitigation investigation will invade dark, shameful family secrets…. More often than not, lawyers and clients come from different racial, cultural and socio-economic backgrounds, and these differences “create barriers to disclosure of sensitive life-history information.” Additional communication barriers between clients and counsel “typically include nationality, ethnicity, language, class, education, age, religion, politics, social values, gender, and sexual orientation.”^[27]

Professor O’Brien concludes that “Overcoming these barriers will often mean involving someone in the defense team with whom the client will feel more at ease.” ^[28] Being aware of our limits in bridging gaps with our clients and asking for help are important skills that require humility and self-understanding.

In sum, both familiarity and difference present challenges to understanding our clients. Even when the speaker is someone with whom we believe we share culture and opinion, we must monitor our attitude. The more we share in common with our speakers, the more likely we are to assume that we know what they are saying or feeling or their goals or motivations. Yet such assumptions undermine our motivation to discover the client’s perspective and are more likely to cause us to prematurely close off our investigation.^[29] When our clients are very different than ourselves, we must closely monitor our tendency to fill in gaps with stereotypes and assumptions and we must be sensitive to the barriers to trust that these differences might cause for our clients and ourselves.

Reflective Practice

Think about what aspects of your identity are most important to you. Consider a range of components of identity, such as race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status.^[30] Answer the following questions.

 

Check your Understanding

Check your understanding of the materials in this chapter thus far. Can you confidently answer each of these questions? Click on each question to compare your answers.

 

D. What tools can you use to better understand yourself and others?

There are multiple tools^[31] designed to categorize individuals by personality traits. Some, like Astrology or “What Character are You?” are used by most people solely for entertainment. Some, like the Myers-Briggs Type Indicator,^[32] have gained a great deal of popularity even though they are criticized as lacking in scientific rigor or accuracy. The Enneagram^[33] model was originally developed as part of spiritual practices and gained popularity among religious communities. The Clifton Strengths Finder^[34] is another popular tool used in organizations to build teams and guide professional development. The Big Five Personality Model (OCEAN), also known as the Five Factor Model, is a more recent, research-based approach widely used in education^[35] and psychology. Some tools measure aspects of international cultural traits.^[36]

Any one of these tools can be helpful in your professional development as attorneys. This is especially so if we view these tools not as labels for judging others but as tools for understanding the varieties of preferences and perspectives. We sometimes speak of personality traits or preferences as though they are clear and separate categories that define individuals. We say that someone is an “introvert” or an “extrovert.” Likewise, we characterize cultures as having distinctive traits that members of that culture share. These rigid characterizations are rarely helpful in understanding individuals. Rather, it is far more accurate to view these traits or characteristics as a spectrum of preferences rather than categories. Be attentive to looking at each client as an individual with a distinctive mix of preferences rather than as a member of a category or a set of categories.

Reflective Practice

Nearly all of our clients are very different from us in one respect—they are not attorneys. The process of legal education and practice forms a professional identity that becomes part of who we are and, in some ways, separates us from our clients. Reflect on the formation of your own professional identity. Answer the following questions.

 

Role Play Practice

In this exercise, you will conduct an intake interview with Jo Williams, who has a dispute with a neighbor.

INTAKE FORM

PROSPECTIVE CLIENT(S): Jo Williams

ADDRESS: 3600 Bellview, Our City, Ourstate

HOME TELEPHONE: 001-500-0002 WORK TELEPHONE: same

EMAIL: JOWILL123@gmail.com

EMPLOYMENT: Retired (University Health Respiratory Therapist)

MARITAL STATUS: Widow (Wesley Williams)

PLACE OF EMPLOYMENT: N/A

AREA OF LAW: Neighbor disputes – property

ATTORNEY: Student attorney

PRIOR REPRESENTATION BY FIRM: None found

DEFENDANT(S): Joe Fowler

ADDRESS:3604 Bellview, Our City, Ourstate

TELEPHONE: 500-0001

DEFENDANT(S) ATTORNEY: None/Unknown

OTHER PROTECTED PARTIES: None

OTHER AFFECTED PARTIES: None

INSURANCE INFORMATION: Safe Family Insurance, 80 Main Street, Our City, Ourstate

LEGAL ISSUE: Jo Williams has a conflict with her neighbor, who has threatened to sue Jo because of a very bright security light on Jo’s house that shines into the neighbor’s home. Jo has the light because of security concerns after a recent burglary in her home while she was on vacation. Jo is also upset that the neighbor allows his dog to roam loose and the dog has dug up some of Jo’s landscaping.

Recruit a partner to play the role of Jo Williams. Take ten minutes to get to know the client and decide what Jo’s goals are for a legal representation.

Chapter Three Endnotes