Best Practices for Legal Education

A New York Times article with that headline observes that we are “in a political season when ethnic, racist and sexual slurs, not to mention general insults, seem to have become part of everyday chatter.”

Dealing with offensive comments can be hard for people generally and there are particular challenges for lawyers.

The article states that listeners’ objections can curb the behavior, but listeners understandably fear damaging relationships and inviting retaliation.  On the other hand, when people are uncomfortable and don’t speak up, this can effectively encourage speakers to continue their offensive remarks.

“A body of psychological research shows that even mild pushback against offensive remarks can have an instant effect — as difficult as that can be, especially with a boss, a friend or a celebrity.”

One expert said that “sexual banter often takes place among men who are friends, and that ‘the function of it is to promote bonding.’”  She said that “[m]en may feel that if they challenge conversation they find tasteless, or simply don’t join in, ‘they’re spoiling the mood at a minimum and possibly putting their relationship to the group at risk,’ she said.  And sometimes they worry that ‘it will raise doubts about their masculinity or heterosexuality,’ or that they will become targets of bullying.”

Challenging others’ comments that feel inappropriate can trigger strong reactions about both people’s identities and whether they are good or bad human beings.

Experts quoted in the article suggest tactics such as changing the subject, engaging in diversionary behavior, and humor.  For example, one expert suggested a response, “I love satire. It’s so weird that people believe that for real and it’s so cool you called that out.”

The director of an LGBT project sends volunteers to go door to door to talk with people. He said, “We are seeking out people who are prejudiced, and they’re using offensive language.  And if you correct that language, just use different words yourself, and your tone and demeanor are kind, people are very responsive, and you don’t have to get into a screaming match.”

This approach seems to be based on deliberate use of empathy.  The volunteers’ kindness presumably conveys understanding and sympathy with people who use offensive language.  And it reciprocally invites the speakers to empathize with the volunteers and the people they seek to help.  The program director said that it “softens” the attitudes of about ten percent of people, so it is far from changing the attitudes of most people.  But perhaps even that ten percent is significant.

While it may be tempting to directly characterize others’ statements – such as saying, “That’s sexist! [racist, a lie, etc.]” – that approach risks stimulating escalation and defensiveness.  It may stop the immediate behavior but it may also lead to counterproductive arguments, cause resentment, and actually reinforce problematic attitudes.

Lawyers not only have to deal with their own personal reactions but also have to manage their professional responsibilities to be respectful.  This may be especially difficult when they encounter problematic attitudes from their own clients.  Lawyers often worry that clients will doubt that the lawyers will fight hard enough, so it can be particularly difficult for lawyers to challenge their clients.

While it may seem counter-intuitive to demonstrate empathy with people who express ideas that feel offensive, it may be an effective tactic.  And it may open people to be more empathetic with others.  This approach may also be helpful strategically by getting people to consider their situation more realistically, recognizing the other person’s perspective as well as that of potential third party decision-makers.

All that said, these interactions can be extremely difficult to navigate, and there is no guarantee of success.

This election can provide some teachable moments for law students about how they might handle problems when they are in practice.

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