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.
Conceptually:
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.
Pedagogically:
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.
Normatively:
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.
