Do Lawyers "Hear" their Older Clients?

Professor Debra Lyn Bassett at Southwestern Law School has an interesting new article, Silencing Our Elders, in a recent issue of the Nevada Law Journal.  She begins:

We do not think much about silence, perhaps especially in law school and as lawyers. In the law, we tend to ignore silence, typically referring expressly to silence in one of two contexts: (1) the right to remain silent (in the criminal law context) and (2) silence as constituting consent (in the contract law context).  Silence is an overlooked area with tremendous potential for facilitating the practice of law and helping clients.

From this broad introduction to the potential significance of silence, in the second half of her article Professor Bassett focuses more specifically on older clients, and the subtle ways in which "age bias" can influence an attorney-client relationship. For example, she writes:

When lawyers quickly fill in silences by asking additional questions, one risk is that the lawyer’s questions may reflect inaccurate assumptions or even stereotypes. Suppose, for example, that a client seeks legal advice about drafting a will, and the client briefly stops talking. Uncomfortable with the silence, the lawyer rushes in to fill that silence by asking, “Do you want your children to receive everything?” That question reflects an assumption—a common assumption, but an assumption nonetheless—that parents always want to bequeath everything to their children. Perhaps the client indeed does want to leave everything to his or her children, but the lawyer’s preemptive question may cause the client to feel uncomfortable expressing a contrary desire.

Good fuel for discussion in a variety of courses.  

My thanks to Dickinson Law Professor Laurel Terry for sending the link to this article.