In October I had the honor of participating in a remarkable day-long conference at UCLA School of Law, organized by Scott Cummings in honor of David Binder, Paul Bergman, Gary Blasi, Sue Gillig and Al Moore, all of whom are retiring or have recently retired from the faculty there. Here’s a version of what I said, focusing on the impact of client-centeredness, the approach to lawyering spearheaded by David Binder and Paul Bergman:
What did client-centeredness teach us? I’ll talk about its conceptual, pedagogical, and normative implications.
There was a time – that is, there still is a time in some circles – when it was often said that skills could not be taught, or learned. What skillful practitioners had was, most likely, acknowledged to be something, but what that something was was ineffable and, really, not that interesting.
It’s integral to the client-centered approach to interviewing and counseling, as I think to all of the skills thinking done by David Binder and Paul Bergman and others who have shaped the UCLA approach, that skills can be analyzed. They have component parts, from the micro level of individual questions or words to overall structures and plans. Others have shared this conviction, but I think no one has been as influential as they have in actually accomplishing this analysis and demonstrating to teachers and students that it made sense.
Moreover, because skills have component parts, it follows that it is possible to assess the performance of these skills by determining whether those component parts were present, and executed correctly, or not. Skills become measurable. Performance becomes subject to evaluation.
As a result, academics have a contribution to make to the profession’s understanding of skills. If skills are to be understood only in the crucible of practice, then only those who are in the arena can speak with authority about what they do. Academics’ role, if they have one, would just be to repeat the distilled lessons imparted to them by practitioners. And of course those lessons might not be very profound, since practitioners might be unable to speak very coherently, however authoritative they are, given what we’ve learned (from Gary Blasi and other students of cognition) about how inaccurate people often are at describing their own thought processes.
But if skills can be analyzed, it becomes entirely possible that academics’ analysis will be superior to that of practitioners – or, more precisely, that academics who are also closely engaged with practice will be able to understand practice in ways that full-time practitioners do not. One of our comparative advantages as academics is time; another is the discipline of academic analysis itself. We have our disadvantages, not least that we may be less deeply immersed in the realities and necessities of practice than those who do it full time, but time and rigor are important assets. Practice becomes an academic subject.
This of course brings me to pedagogy. What can be analyzed and understood by academics can, at least potentially, be taught by them too.
But how? Broadly speaking, perhaps, in the same way that they can be understood. It seems to me that David, Paul and their UCLA colleagues have insisted that if skills can be broken down into their component parts, the way for students to learn them is to start with those component parts, practice them, and gradually combine them in tasks of increasing complexity. I take it to be a corollary of their thinking that – as in the Depositions course about which David, Al Moore and Paul wrote not long ago – the targeted practice and equally targeted feedback possible in simulations are integral. Correspondingly, live-client clinical teaching that actually means to teach particular skills needs to be very carefully targeted as well. Not everyone agrees; some clinicians put more weight on the experience of client representation and the opportunity for reflection as foundations for later learning of more specific skills. But I would say that David and Paul’s pedagogy is implemented, in greater or lesser degree, in “skills” courses around the country. It may have influenced the development of legal writing pedagogy as well, and it may be affecting the ongoing debate over the elements of instruction in the traditional doctrinal classroom too.
I’ll have more to say about pedagogy, but first I need to shift focus.
What I’ve said so far is incomplete in a very important way, because it might suggest that the contributions David and Paul have made are just about the analysis and teaching of technique. But this isn’t true at all, and so now I want to really talk about client-centeredness specifically.
Let me start this way: client-centeredness did not take shape as a response to an academic problem. I believe, which is to say I recall David saying, that client-centeredness was a response to a problem of value: that lawyers had been exercising unjustified power over their clients. To this day the profession's official rules of ethics (I’m thinking of Model Rule 2.1) speak only opaquely about how lawyers and clients should actually interact with each other, but client-centeredness helped us see the play of power - and its potential channeling and restraint - in each moment of interaction between lawyer and client.
In discerning this moment-by-moment potential for just and unjust relations between lawyer and client (just as in articulating techniques for achieving just relations) client-centeredness has been enormously influential. Exactly what client-centeredness calls for has, to be sure, become almost as debated a question as, say, what utilitarian ethical theory requires – as Kate Kruse has demonstrated – but that’s really proof of its influence. Similarly, there are now schools of clinical thought that claim different labels, such as collaborative lawyering, but I think these share a great deal of common ground with client-centeredness. So, for example, Bob Dinerstein, another panelist at the UCLA event, Isabelle Gunning, Kate Kruse, Ann Shalleck, and I recently wrote a book in which we positioned ourselves, in Bob’s happily chosen phrase, as endorsing “engaged client-centeredness.” That phrase reflects what I think is true for all clinicians today, regardless of the particulars of label: we are all client-centered now. And of course it’s also important to see that in this respect as well, David and Paul taught that academics had a distinctive contribution to make to discussions of practice, because they brought not only analytical rigor but normative challenge to the forms of practice that were once prevalent.
I think it’s appropriate to underline here the technique that may be the signature of client-centeredness: active listening. Simply to tell lawyers that a crucial part of engaging with clients was not talking was, of course, of value. But active listening is, as probably everyone here knows, much more than not talking. In fact, active listening involves a certain amount of speaking! The speech, however, is focused on conveying a particular emotional response from the lawyer to the client, a response that incorporates attentive understanding but goes beyond it to express a specific relation and connection to the client: nonjudgmental empathetic regard.
I once wrote an article arguing that sometimes more than empathy is called for between lawyer and client, but empathy, if not always sufficient, is surely always necessary. And empathy is more than a skill; I think it rests on values of acceptance, and ultimately respect, for clients. Respect, in turn, is integral to client-centeredness. The specific techniques of client-centeredness reflect a belief in the capacity of clients to arrive at thoughtful decisions if they are helped to see matters clearly – and a commitment to protecting clients’ right to make those decisions, their right of self-determination.
Just two more points about this norm of respect, this time in connection with pedagogy again: First, one of the important themes of current commentary about legal education suggests that skills and values are separate things and thus prompts concerns about whether success in teaching skills alone is a sufficient preparation for practice. Client-centeredness, however, is an approach to skills that rests on values at every step; if we teach client-centeredness, we are teaching both skills and values. Client-centeredness has a normative kick from the get-go.
Second, the implication of respect for clients is that students also should be treated with respect, and that their capacity to learn should both be recognized and assisted, with the same sort of careful attention to promoting student learning that client-centeredness gives to promoting client decisionmaking. The client-centered lawyer is not passive, nor is the student-centered teacher – they both have a lot of important work to do. But they both do that work as an expression, and a vindication, of respect.
Let me just add my personal thanks to David Binder for his own living of the norm of respect. I first showed up out here at the 1986 Arrowhead conference, where I gave a paper called “Lawyers and Clients” – a title whose rhythm I borrowed from Turgenev’s “Fathers and Sons,” with my father, then dying of Lou Gehrig’s disease, in my mind. Though I admired client-centeredness then, as I do still, in the nature of academic papers I focused on what I found to critique in it. A lesser person would have treated that paper as a reason for distance; David treated it as a basis for what’s become a quarter-century of collegial friendship. I was grateful then, and I’ve only become more grateful since.