Thursday, October 7, 2021
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Just yesterday, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 500, “Language Access in the Client-Lawyer Relationship.” (Formal Opinions are the means by which the ABA offers its advice on how to interpret its Model Rules of Professional Conduct, the model upon which all fifty states ethics rules are based.) In that Opinion, the Standing Committee took up the question of a lawyer’s duties when the lawyer and client do not share a common language. The Standing Committee concluded that when a lawyer and a client do not share a common language or mode of communicating, there is room for misunderstanding that can impact the sufficiency of the lawyer-client communication and the competency of the representation. In other words, if a client cannot understand what the lawyer is saying because of a language barrier or the lawyer cannot fully understand what the client is communicating, the lawyer’s ethical duties of competency and communication are at risk.
In these cases, the Standing Committee said, lawyers have a duty to get assistance from “qualified and impartial” interpreters or employ “assistive or language-translation devices” (such as closed captioning, live transcription, or speech recognition software) that enable the client to participate fully and intelligently in the representation and to ensure that the lawyer is competently gathering information to prepare the client’s case. Lawyers would be wise to take a look at Formal Opinion 500 as it gives detailed advice on when a lawyer has a duty to employ the services of a translator, interpreter, or other assistive communication device. It also explains what to consider in determining if an interpreter is qualified.
The most interesting part of the Formal Opinion, however, from a rhetorical perspective, comes at the end in the guidance about cultural competency. In that section, the Standing Committee turns from a discussion on language and physical barriers to communication to the barriers created by social and cultural differences between lawyers and clients. The Standing Committee suggests that language differences may indicate cultural differences that impact how lawyers and clients interpret their communications. In other words, the “[t]he client may view the representation and the choices it entails through the lens of cultural and social perspectives that are not shared by or familiar to the lawyer.” As a result, the Committee said, the lawyer has a responsibility to develop cross-cultural competence that enables the lawyer to navigate and understand how clients give meaning communications based on the the whole context of their cultural, social, and lived experiences. Ultimately, the Opinion concludes that effective communication between lawyers and clients exists only when “client[s] understand the relevant law and legal, institutional, and social contexts of the communication." In other words, lawyers are responsible not only for the words they choose but for ensuring that clients, from the vantage point of their experiences and perspectives, understand what those words mean. That is, the Opinion establishes that lawyers have a duty to be culturally competent in their communication to ensure that meaning is not just conveyed but shared.
Having the responsibility to ensure that clients not only hear what the lawyer says but also know what those words mean—and conversely to ensure that the lawyer knows what the client’s words mean—is a tall order. Thus, the Opinion offers helpful advice to lawyers on how to approach meaning-making in attorney-client communications when cultural differences exist:
- Be aware of cultural differences;
- Understand how they impact the representation;
- Pay attention to how biases distort understanding;
- Frame questions in multiple ways that might help the client in familiar contexts;
- Explain the matter in multiple ways;
- Give additional time in meetings for questions and clarifications; and
- Learn more from both research and experts about how to accomplish mutual understanding.
These are all good pieces of advice, particularly for lawyers who are aware that they regularly work with clients who do not share the lawyer’s cultural expectations, understanding, or contexts. Moreover, training in cultural competency and effective cross-cultural communication is something every lawyer should seek out to better serve clients.
Not surprisingly, I suppose, I want to extend the Standing Committee’s discussion into the realm of rhetoric and ask what rhetorical skill might have to do with cultural competency. Thus, I’m going to suggest that effectively communicating across cultures is not just a type of cultural competency but instead is also a rhetorical competency—an ability in any given situation to understand the needs of the audience and to communicate effectively with them to create shared meaning.
One specific rhetorical competency that can help with the kind of cross-cultural communication that the Opinion suggests is an ethical duty is rhetorical listening. Rhetorical scholar Krista Ratcliffe explored the concept of rhetorical listening in the context of her studies on composition, gender, and ethnicity. (See her book and her article on the topic.) Ratcliffe defines rhetorical listening in her book as a “stance of openness that a person may choose to assume in relation to any person, text, or culture.” It is a form of listening not for “mastery” but for “receptivity.” For lawyers, the concept of rhetorical listening has application for thinking about how we might “turn one’s ear,” so to speak, toward the communication needs of clients who come from cultural backgrounds different from one’s own and might improve lawyers’ client interview skills. What follows is my adaptation of Ratcliffe’s theory to lawyer cross-cultural communication as a rhetorical skill.
Often, when lawyers talk to clients, they are engaged in what Ratcliffe describes as listening for mastery. I might call that kind of listening the lawyer’s typical “interrogative listening”—listening to extract from the client the information lawyers find legally relevant and filtering the client’s story through one’s own cultural and legal understandings. When lawyers engage in this kind of listening, lawyers tend to give the words meaning through exclusively their own perspectives, perhaps with only a passing thought to whether the meanings drawn from the client’s words are the meanings shared by the client themselves.
Conversely, when lawyers rhetorically listen to the client, they are not listening to interrogate the client and extract the story; instead they are listening to be receptive to the possibilities of meaning that might come with what they hear and to question how the client might understand the shared information through their own culture and experiences. In addition, a lawyer engaged in rhetorical listening will be thinking about whether the messages the lawyer delivers to the client mean the same things to the client as they do to the lawyer. Rhetorical listening, then, is a way lawyers can listen to clients to focus, as Ratcliffe says, simultaneously on “differences and commonalities” across the potentially different cultures clients and lawyers occupy. In this way, lawyers’ rhetorical listening creates spaces for accomplishing the shared meaning that the Standing Committee’s Opinion demands.
One way to get one’s head around this somewhat nebulous idea of rhetorical listening, Ratcliffe suggests, is to invert the word “understanding” in the context of communication and think of it instead as “standing under” communication. “Standing under” means to let others’ messages “wash over, through, and around us” while acknowledging at the same time our own “particular and fluid standpoints” and how those might relate to each other. This means that instead of hearing client messages as a set of building blocks that the lawyer sorts and stacks, client messages are experienced as a waterfall--immersive, experiential, and exploratory. I think Ratcliffe may be on to something here for lawyers--rarely, I think, do lawyers let client stories “wash over” them; instead, they seek to fit the client’s story into a particular legal framework with little room for negotiated meaning when cultures collide. Rhetorical listening may be a game-changing addition to lawyers’ cross-cultural listening skills.
If lawyers are sorting and stacking the client’s story, they are likely narrowly focused on filtering that story through their own cultural understandings and meanings. The client may not share those understandings, and this is the point the Standing Committee is making in its Opinion. If lawyers ignore this potential cross-cultural gap in meaning-making, they stand to be less competent and effective. As the Committee points out, “a lawyer must ensure that the client understands the legal significance of [the lawyer’s] communications and that the lawyer understands the client’s communication, bearing in mind the potential differences in cultural and social assumptions that might impact meaning.”
Ratcliffe’s rhetorical listening gives lawyers a space in which to approach this cross-cultural work, even as they begin to become more knowledgeable of cultural differences between themselves and their clients. Ratcliffe gives lawyers a way to “listen for that which [they] do not intellectually, viscerally, or experientially know.” As she suggests, lawyers must “first acknowledge[e] the existence” of different cultural understandings, they must listen for “unconscious presences, absences, and unknowns,” and they must “consciously integrat[e] this information into [their] worldviews and decision-making.”
What are your thoughts?
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.