Educating culturally sensible lawyers: a study of student attitudes about the role culture plays in the lawyering process.

Author:Curcio, Andrea A.
 
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ABSTRACT

Lawyers' cultural experiences, biases, and perspectives may differ from those of clients, colleagues, and judges. Awareness of such differences is critical to effective representation because cultural perspectives may affect numerous aspects of the lawyering process, such as interviewing, counseling, negotiating, strategising, and persuading. Empirical data that informs the debate about the need to teach students to work across cultures is particularly relevant as lawyers serve increasingly diverse populations and transnational practice continues to grow. In this article, we describe a survey developed to provide law faculties with data to help assess the need for cultural competence education and to inform the discussion of what that education might encompass. In this article, we discuss the reasons to consider developing students' abilities to work effectively across cultures, the survey design and methodology, and the survey findings. Initial results indicate that the students surveyed largely want to learn about how culture may affect the lawyering process, generally are aware that culture may affect client behaviours, but may be less aware of the effect culture has on their own perceptions and behaviours. They also indicate that simply taking a survey such

as the one described herein has an educational benefit. We discuss the implications of those findings for law teaching. While the work described herein was done in the United States, we believe the issue transcends national borders and we hope this article provokes discussion across borders about the need to develop law students' abilities to work effectively amongst countries' own diverse populations as well as transnationally.

I INTRODUCTION

Today's lawyers practice in a multi-national and multi-cultural world and must be able to interact effectively with people from cultures different than their own. While some legal educators recognise the importance of teaching students to understand and address the role culture plays in the lawyering process, (1) other legal educators may be less familiar with the importance of developing students' ability to work effectively across cultures. Similarly, medical educators have confronted the need to educate colleagues about the importance of developing students' abilities to work with patients from a wide range of cultural backgrounds. (2)

In 2000, the Liaison Committee for Medical Education (LCME), the medical school accrediting authority for U.S. medical schools, introduced a cultural-competence standard. (3) Development of the standard was prompted by the recognition that 'language and culture affect health care beliefs, choices and treatment' (4) and that the different cultural experiences of health care providers and their patients contribute to racial and ethnic disparities in health and health care access, (5) In the years since that standard was introduced, medical educators have treated development of students' abilities to work with people from a wide range of cultures as an important subject for both pedagogy and research. Health care educators have designed numerous teaching methodologies and cultural-competence learning outcome measurement tools in health education. (6) Based upon this work, we began exploring whether similar instruments could be developed for legal educators. Before developing an instrument to measure student learning outcomes, we believe it is useful to develop an instrument that measures law students' understandings of, and desires to learn about, how culture affects the lawyering process. The instrument can help inform the debate about the need for educating law students to work across cultures and what that education should encompass--a necessary prelude to conversations about student learning outcomes.

Although 'cultural competence' is the most commonly used term to describe teaching students to work effectively across cultures, we prefer not to use it because that term implies one can become 'competent' in another's culture. We find that problematic because it assumes that culture is possessed by the Other, rather than all people, and because it assumes all people from the same culture act and think alike. In this work, we conceptualise the skill of being able to work effectively across cultures as one that requires: self-awareness of the lawyer's own cultural lens; the ability to understand the cultural forces that affect the lawyer and all those with whom the lawyer communicates; the ability to identify the interaction of those cultural forces; and openness to changing one's perspective based upon what has been learned. (7) Because this construct adopts the 'cultural sensibility' model identified by Drs. Dogra and Karnik, (8) throughout the remainder of this article as we discuss our work, we refer to developing students' 'cultural sensibility' because we believe this term best describes the skills law students need and that the survey attempts to capture.

In Part I, this article briefly explains how cultural sensibility skills permeate all practice areas and undergird a wide range of lawyering skills. Part II provides an overview of medical educators' work to develop and measure student learning outcomes and briefly discusses the theoretical constructs developed by U.S. clinical legal educators seeking to enhance their students' abilities to work cross culturally because this work laid the groundwork for the development of our survey instrument. Part III discusses the survey design and methodology. Parts IV and V present findings from a study based upon the survey and discuss those findings in light of both the information learned about law students' knowledge and attitudes and the implications for developing teaching methods and materials designed to enhance students' cultural sensibility. Parts VI and VII discuss ways to improve the study instrument as well as potential future studies.

We acknowledge, at the outset, that the survey and its results are merely an initial foray into relatively uncharted waters for legal educators and we do not claim that the survey results are the definitive statement about student attitudes and knowledge about the role culture plays in the lawyering process. Rather, we hope this article sparks discussion about the need for legal educators across the globe to further explore these issues and hope the survey lays the groundwork for others to build upon in that exploration.

II WHY CULTURAL SENSIBILITY IS A NECESSARY LAWYERING SKILL

While definitions of culture are complex, nuanced and varied depending upon context and discipline, (9) medical educators define culture as 'integrated patterns of human behaviour that include the language, thoughts, communications, actions, customs, beliefs, values and institutions of racial, ethnic, religious or social groups'. (10) They recognise that culture is multi-faceted and a 'part of all of us and our individual influences (including socioeconomic status, religion, gender, sexual orientation, occupation disability, etc.)'. (11) As is clear from that definition, today's lawyers are likely to work with people from cultures different than their own.

What makes developing law students' ability to work across cultures a complex endeavor is that all people have multiple cultural backgrounds and experiences that affect their perceptions and interactions (12) and, of course, all members of a particular race, ethnicity, religion, or social group do not have the same cultural experiences, perceptions, beliefs, or attitudes. (13) While lawyers cannot become 'competent' in a particular culture (14) they can become 'culturally sensible'. Lawyers can learn to recognise, understand, and effectively deal with how their own and others' cultural beliefs, perceptions, attitudes and understandings affect legal analysis and interpersonal interactions. (15)

Lawyers' understandings of, and abilities to deal with, their own and others' cultural perspectives serve as the foundation to support a wide range of other lawyering skills. Because culture affects verbal and nonverbal communication as well as expressions and perceptions of emotions, (16) lack of cultural sensibility skills make it more difficult for lawyers to effectively interview, counsel, negotiate, strategise, or resolve conflicts. (17) For example, in some cultures, it is considered improper to publicly display emotion. (18) Failure to recognise and account for this may leave the lawyer, and the trier of fact, with a misimpression about the client's reaction to a key event. Or, in business law transactions and settlement negotiations, if a lawyer is unaware that in some cultures directly confronting disagreements is considered inappropriate (19) the lawyer may be an ineffective dealmaker and negotiator. In today's multi-cultural world, regardless of practice area, lawyers cannot accurately analyse a case without understanding the context, and they cannot understand the context if they are unaware of the cultural forces that may be in play. Without the ability to understand their own and others' cultural lenses and how such lenses affect interactions, lawyers risk errors in perception and judgment that may harm clients. (20) Those risks of miscommunication and misunderstandings may occur when working with under-represented populations or with multi-national industries and law firms. In fact, legal educators have written about the role culture plays in a number of different substantive practice areas, including: international transactional legal work, (21) mediation, (22) domestic litigation, (23) elder law, (24) international human rights, (25) criminal law, (26) health care law, (27) and poverty law. (28)

In many ways, the ability to understand the cultural biases and perceptions at work in a case is akin to the ability to perform legal analysis. In each instance, lack of knowledge may lead to missing or misunderstanding a critical element...

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