Author: Sue Bryant & Jean Koh Peters
Last updated: October 2007
Mary, an Irish-Catholic, thirty-year-old student in a domestic violence clinic reviews two of her client-intake memos. In one she details the story of Razia, a recent immigrant from Pakistan, who is experiencing spousal abuse and preparing to leave the marital home. The memo describes Razia’s family in detail and reports that Razia has intentionally isolated herself from her large extended family. Mary reports that Razia’s family does not support her decision to leave and that she cannot rely on any family members to attend court proceedings with her or provide her assistance. The other memo was about Maureen, a recent immigrant from Ireland, and Mary notices that she reports sparse information about Maureen’s family, other than to report that she has moved in with her sister to escape the spousal abuse.
Why does a lawyer have extensive information about one client’s family and little about another’s? Is it the influence of the questions the lawyer asked or the story the client volunteered?
Habit One helps address this question by asking the lawyer to identify how differences and similarities between the lawyer and client may influence lawyer-client interaction. This habit is simple in concept and execution. The first part of the habit asks the lawyer to brainstorm, as quickly as possible, as many similarities and differences between him and the client as he can generate. The second part of the habit asks the lawyer to assess the significance of these similarities and differences. By identifying differences, we make conscious the potential cultural misunderstandings that may occur. By identifying similarities, we make conscious the connections we have with clients.
This Habit is rewarded for numerosity – the more differences and similarities the better. Thus, in the list below and in the sample work sheets (attached in Appendix A), we identify many categories of difference and similarity. Extensive lists, help the lawyer make conscious the less obvious similarities and differences that may enhance or interfere with understanding. With each client, you may identify different categories that will influence the case and your relationship. These lists will change as the relationship with the client and the client’s case changes.
Most importantly, by consciously identifying a long list of similarities and differences, we are more likely to see our client as an individual who has personal, cultural, and social experiences that shape the client’s behavior and communications. In asking you to create long lists, we do not mean to suggest that all similarities and differences have the same order of importance for you or your client. For example, in interactions involving people of color and whites, race will likely play a significant role in the interaction given the discriminatory role that race plays in our society. 
A lawyer should brainstorm under conditions that promote the greatest possible accuracy and honesty. Even if the list is private, the lawyer may find his own internal self-judgment hampering his ability to make a comprehensive list. If, for instance, the lawyer representing a Jewish client knows in his heart that he has demonstrated anti-Semitic views from time to time, that fact is clearly relevant to the list and the diagram. Yet, shame may prevent the lawyer from acknowledging or recording that fact. Habit One specifically asks the lawyer to put that shame to one side and acknowledge the former views as a relevant fact.
Keep in mind that differences need not be diametrical opposites and similarities need not be exact equivalents. The most important thing is to make this list honestly and non-judgmentally, thinking about what similarities and differences you perceive and suspect might affect your ability to hear and understand your client’s story. Most of us will never know our clients or ourselves well enough to develop a comprehensive list. However, by identifying similarities and differences, we identify possible categories that may be ripe for stereotyping and bias.
Some examples of categories where you might identify differences or similarities are:
Another way to illustrate the degrees of connection and separation between client and lawyer is through the use of a simple Venn diagram. The graphical representation of Habit One asks you to imagine impressionistically the worlds of lawyer and client as two circles. Drawing from instinct, map the two circles, overlapping broadly if the worlds of the client and lawyer largely coincide and narrowly if they largely diverge. As the chart in Appendix A illustrates, the diagram allows the lawyer to create a picture of similarities and differences that may give the lawyer different insights than the lawyer got from the list. For example, the list of similarities may be small and yet the lawyer may feel very similar to the client because of one shared similarity or the lawyer may have many similarities and yet find herself feeling very distant from the client.
After creating the lists and diagrams, the lawyer can identify where the cross-cultural challenges might occur. By naming the things that unite and distance us from our clients, we are able to identify relationships that need more or less professional distance because they are “too close” or “too far.”
No perfect degree of separation or connection exists between lawyer and client. However, where the list of similarities is long, the lawyer may usefully ask, “Are there differences that I am not recognizing?” By asking that question we acknowledge that, while similarities promote understanding, misunderstanding can occur when we assume that the client’s story is just like ours. In situations where lawyers and clients have circles that overlap, the lawyer should ask herself, “How do I develop proper professional distance with a client who is so similar to me?”
In other cases, where the list of differences is long, the question for the lawyer is: “Are there any similarities that I am missing?” We know that negative judgments are more likely to occur when the client and lawyer see the other as an “outsider.” Thus, the lawyer who identifies significant cultural differences between herself and the client will be less likely to judge the client if she also sees herself as similar to the client. Where large differences exist, the lawyer needs to consciously address the question, “How do I bridge the huge gap between the client’s experiences and mine?”
Where cultural differences exist between lawyer and client, different perspectives may increase the possibility for misinterpretation. Therefore, the lawyer must pay careful attention not to interpret the client’s words, behavior and body language within the lawyer’s cultural lens but instead to try to understand the behavior, words and body language within the context of the culture within which it occurs. Differences and similarities or assumptions of similarity will significantly influence questioning and case theory.
One example of how differences and similarities in the lawyer-client dyad may influence information gathering can be seen in the way lawyers probe for clarification in interviews. Lawyers usually ask questions based on differences that they perceive between themselves and their clients.  Thus, lawyers tend to ask questions when clients make choices that the lawyers would not have made or when they perceive an inconsistency between what the client is saying and the client’s actions. Lawyers tend not to ask questions about choices clients have made when the lawyers would have made the same choices. The questioner assumes that the client’s thought processes and the reasons they reached those decisions are the same as her own.
To identify the unexplored cultural assumptions that the lawyer may be making, the lawyer should reflect on attorney-client interview and identify areas where the lawyer may have missed relevant explanations of behavior. What has the lawyer followed up on and what has he left unexplored?
Mary, the student-lawyer in the example at the beginning of Habit One, has probably probed the first client about her failure to seek family support because Mary believes that her own family would support her decision to leave an abusive relationship. This probing occurs because the lawyer perceives the client’s choices as different from the ones the lawyer might make and therefore, she tries to understand why the client has failed to involve her family. These differences may arise out of cultural differences in family relationships, in assessment of appropriate uses of the law or outsiders to resolve problems, in response to violence or a number of other explanations. (Notice parallel universe thinking here which is described more fully in Habit Three.)
Perhaps Mary leaves unexplored the report that Maureen has moved in with her sister to escape the spousal abuse because Mary imagines taking similar steps. In her failure to ask questions, Mary is probably making a host of assumptions about cultural values that relate to the client’s family, her family values and her sister and their relationship. The lawyer may for example assume incorrectly that the sister is supportive of the client’s decisions and shares the client’s view that moving out is appropriate.
Assumptions of similarities that mask differences can lead the lawyer to solutions and legal theories that may not ultimately work for the client. In assuming that the client has family support, the lawyer in the above example may neglect to explore other housing arrangements or supportive environments.
Family relationships are incredibly rich areas for cultural misunderstanding and therefore, assumptions of similarity are perhaps even more problematic when issues of family are involved.
Some lawyers may feel reluctant to name the differences between themselves and clients for fear that acknowledging differences will encourage stereotyping and promote inequality. However, cross-cultural psychologists, anthropologists and trainers tell us that we already stereotype and misunderstand one another. They believe that conscious attention to differences is the best way to eliminate stereotyping and promote a focus on the individual.  We hope that the use of these habits convinces you of the validity of acknowledging differences as a way to lead to understanding of the individual and justice in the legal system. We also know that assumptions about the meaning of similarities may also cause us to stereotype and misjudge clients. By listing both similarities and differences, we are consciously identifying ways that we will connect to clients and the ways that we might judge, misunderstand and misinterpret clients.
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