Habit Four: Red Flags and Remedies

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Author: Sue Bryant & Jean Koh Peters
Last updated: October 2007

Jeff, an experienced lawyer who is Jewish and fourth generation Austrian-American, is interacting with his client Charles, an 8-year-old African-American. Charles who lives in a low-income housing project has been described by social workers as “a bright, verbal boy.” In their first meeting, Jeff gives Charles his standard explanations of “protective hearings,” “pleas,” and “neglect.” In his interactions with Jeff, Charles is subdued, reticent to talk except to tell Jeff, “I did not do anything wrong.” Thinking of the many children who blame themselves for neglect proceedings against their parents, Jeff explains that neglect proceedings are brought by the state against his parents and not against him.

After a court proceeding that occurs later in the representation, Charles asks Jeff why there were no police in the courtroom. In response to Jeff’s question about why did Charles think there would be police, Charles replies, “You only get a lawyer if you’ve done something wrong.” He explains that everyone he knows who had a lawyer was put in jail.
What could Jeff have done to get this information early in his representation?

The first three habits focus on ways to think like a lawyer, incorporating cross-cultural knowledge into analyzing how we analyze claims, our clients and the usefulness of the legal system to addressing the client’s concerns. Habit Four focuses on the skills that are needed to accurately communicate information to clients as well as to accurately interpret the verbal and non-verbal information that the client is communicating to us.

Good cross-cultural interaction requires mindful communication where the lawyer remains cognitively aware of the communication process and avoids being on automatic pilot in her responses to the client. In all client interaction, careful attention to the process of communication will improve the quality of the communication. In cross-cultural communication, the lawyer must listen deeply, carefully attuned to the client and continuously monitoring whether the interaction is working and whether adjustments need to be made.

Habit Four is a habit that can be done in the moment and requires little planning for the experienced lawyer. For the new lawyer, who has difficulty paying attention to the process and content of the interview, planning for what to look for can take the place of more “in the moment” observations. The lawyer can identify ahead of time what she will look for to spot good communication and “red flags” that will tell her that accurate, genuine communication is probably not occurring.

In addition to paying attention to red flags and corrective measures, Habit Four encourages culturally sensitive exchanges with clients including the following.

Use Scripts Carefully

The more we do a particular activity, the more likely we are to have a “script.” Lawyers often have scripts for the opening of interviews, explaining confidentiality, building rapport, explaining the legal system and other topics common to the lawyer’s practice. However, a mindful lawyer uses scripts carefully, especially in cross-cultural encounters, and instead, develops a variety of communication strategies to replace scripts. As the above example of Jeff and Charles illustrates, assumptions about the information that clients need and scripted responses to explain may result in miscommunication.

Pay Special Attention to Beginnings

A lawyer working with a client from another culture must 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 promote rapport and conversation. A lawyer who is unaware of the client’s rituals must pay careful attention to the verbal and nonverbal signals the client is giving to the lawyer. How will the lawyer greet the client? What information will be exchanged before they "get down to business?" How do the client and lawyer define "getting down to business?" For one, the exchange of information about self, family, status, or background is an integral part of the business; for another, it may be introductory chitchat before the real conversation takes place. If a translator who is familiar with the client’s culture will be involved with the interview, the lawyer can consult with the translator on appropriate introductory behavior.

Use Techniques that Confirm Understanding

Both clients and lawyers in cross-cultural exchanges will likely have high degrees of uncertainty and anxiety when they interact with someone they perceive to be different. The lack of predictability about how they will be received and their capacity to understand each other often leads to this uncertainty and anxiety. To lessen uncertainty and anxiety, both the lawyer and client will be assisted by using techniques that consciously demonstrate that genuine understanding is occurring. Active listening techniques – including feedback to the client rephrasing his or her information – that are espoused by legal interviewing texts may be used to communicate to the client that the lawyer understands what the client is saying. [39]

In addition to giving the client feedback, the lawyer should look for feedback from the client that the client understands the lawyer or is willing to ask questions if the client does not understand. Until the lawyer knows that the client is very comfortable with a direct style of communication, a lawyer should refrain from asking the client if she understands and instead probe for exactly what the client understands.

Gather Culture-Sensitive Information

How do we gather information that helps us interpret the client within her cultural context? In the first instance, the lawyer should engage in “deep listening” to the client’s story and voice. For reasons identified in Habit One, the lawyer, in question mode, will often be too focused on his or her own context and perspective. When exploration of the client’s values, perspective and cultural context is the goal, the lawyer needs to reorient the conversation to the client’s world, the client’s understandings, the client’s priorities, and the client’s narrative. Questions that get the client in narrative mode are usually the most helpful. When the client is in narrative mode, the lawyer can actively observe the client and her culture and the client’s approach to the problem. Note, however, that narrative mode may be more difficult for people in some cultures than for others. In some cultures, for example, conversation space is expected to be shared equally and monologues are considered rude or boring.

Questions that ask the client how or what they think about the problem they are encountering may also expose differences that will be helpful for the lawyer to understand the client’s worldview. For example, had the lawyer in the neglect case described above explored even briefly the client’s response to the situation, the lawyer may have learned the source of the client’s apprehensions. 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? Who else besides the client will be affected? 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?

If the client has come from another country, the lawyer should ask the client how this problem would be handled in their country of origin. These questions help the lawyer understand the context within which the client sees the problem. They may, for example, help the lawyer see whom else the client considers importantly involved with what the lawyer may see as an individual concern. These questions also give the lawyer some information about the expectations that the client has for the legal system and for 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 client-centered lawyering which sees the lawyer as partner and the client in charge of major decisions about resolving the case.

Look for Red Flags that the Interaction Is Not Working

What are the red flags that mindful lawyers pay attention to in assessing whether the conversation is working for the client and lawyer? In the above example, Jeff had been told that his client was bright and verbal and yet the client was cautious and mostly silent in the interview. This should have raised a red flag for Jeff. Other red flags that the lawyer can look for include:

  • The client appears bored, disengaged or even actively uncomfortable;
  • The client has not spoken for many minutes and the lawyer is dominating the conversation;
  • The lawyer has not taken any notes for many minutes;
  • 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 [40]; or
  • The lawyer is distracted and bored.

These are a few of dozens of examples. Each lawyer and client, and each lawyer/client pair will have their own repertoire.

The first step is to see the red flag, and be shaken out of complacency. “Uh, oh, something must be done.” The next step is the corrective one. This must be done on the spot, as soon as the red flag is seen. The general corrective is to do anything possible to return to seeking the client’s voice and story.

Explore Corrective Measures

In creating a corrective, the lawyer should be careful to use a different approach than the one that has led to the red flag. For example, if the client is not responding to a direct approach, try an indirect approach. If the call for narrative is not working, ask the client some specific questions or ask for narrative on a different topic.

Other suggested correctives include:

  • Turning the conversation back to the client’s stated priority
  • Seeking greater detail about the client’s priority
  • Giving the client a chance to explain in greater depth her concerns
  • Asking for examples of critical encounters in the client’s life that illustrate the problem area
  • Exploring one example in some depth
  • Asking the client to describe in some detail what a solution would look like
  • Using the client’s words

These are again only a few examples of many correctives that can be fashioned. Encounter by encounter, the lawyer can build a sense of the red flags in this relationship and the correctives that “work” for this client. Client by client, the lawyer can gain self-understanding about her own emblematic red flags and correctives that specifically target those flags. Red flags can remind the lawyer to be aware of the client and focused on the client in the moment. With reflection, the red flags can help the lawyer avoid problems in the future.

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