Why Thinking About Diversity in Law School Helps Prepare You For Practice

Remarks to incoming 1L students at the University of Michigan Law School, Fall 2017

I think there are many reasons why a cultivated awareness of diversity issues is important to success in the practice of law. I’ll highlight three that I think are particularly compelling.

The first has to do with the fact that practicing lawyers spend a great deal of their time doing applied psychology. One of our former deans called this the activity of “sympathetic engagement.” I sometimes refer to this as the “art of understanding.” But these labels get at the same thing: your career will in large measure be devoted to trying to figure out what makes other people tick.

You can imagine why this is true of litigators. A litigator cannot effectively examine or cross-examine a witness without understanding who the person is, his or her perspective, how he or she communicates, and what matters to him or her. Lawyers who cannot “connect” with witnesses—whether the witness is their own or their opponent’s—are simply not as effective as those who can.

In the same vein, a litigator’s ability to persuade a jury or a trial or appellate judge is substantially determined by his or her capacity to understand the audience for the argument. This is why in the jury selection process lawyers try to learn as much as they can about prospective jurors. This is why a lawyer who draws a case before an unfamiliar judge immediately circulates an email to all of his or her partners looking for insights.

Let me give you an example from my own practice experience. Years ago, I defended a major television network and one of its news programs in a defamation case. The players included a middle-aged white Republican judge, a prominent African American journalist, a racially and ethnically diverse jury drawn from a predominantly Democratic region of Michigan, a world renowned research physician, a former state policeman, a suburban divorced mother grieving the loss of her child, and a Jewish veteran of World War II. At one point or another, the case required me to engage empathically with each of these people—to try to understand them, so that I could communicate with them, so that I could convey my client’s case in the most effective way.

   

But the “art of understanding” applies to non-litigators as well. It pertains with equal force to an attorney who represents clients in business transactions, or who drafts estate plans, or who does public interest advocacy before legislatures on behalf of the disabled. All of these lawyers need to cultivate their capacity to listen to, engage with, and understand people who are different than they are. Indeed, I suspect that for as long as the legal profession has existed it has been true that the best lawyers in every field have cultivated the art of understanding.

This brings me to my second point: as the world has become “smaller,” and as it has become increasingly inevitable that we will interact with individuals from diverse racial, ethnic, cultural, socioeconomic, religious, and other groups, it has become correspondingly critical for lawyers to cultivate the art of understanding.

I see this phenomenon in one of my primary areas of interest, privacy law. When I began practicing in the field in the 1980s, discussions of privacy in the United States were very parochial. We were almost exclusively concerned with privacy law in a highly localized sense—for example, focusing on the statutory privacy law of New York as compared to the common law privacy of Michigan.

But the Internet effectively transformed every publisher into an international publisher, potentially exposing it to the legal regimes of other countries. This means that a company like Google has to worry about how countries around the world define “privacy,” how they square the demands of privacy with the demands of free expression, and how they enforce those concepts through their laws.

Indeed, in a relatively recent case a European court protected the claimed privacy rights of a Spanish citizen by entering an order against Google that would almost certainly be invalid if issued by a court in this country. In the field of privacy, we must all be internationalists now, and this requires us to understand not just differing legal principles but the diverse social and cultural norms that drive them.

And this brings me to my third point: we come to law school largely ill equipped to do all of these important things that I just described. For many of us, our personal experience with racially, ethnically, religiously, socioeconomically, and otherwise diverse populations is limited. And most of us have had relatively few opportunities to formally study these issues.

This creates the risk that we will attempt to understand those who are different from ourselves by resorting to the same deeply flawed tools that non-lawyers use: generalizations; stereotypes; characterizations; assumptions. We will run our experiences through the filters that confirm our biases. Sociologists have recently called this “thinking fast”—that is, resorting to devices that help us process the world quickly and easily—and they tell us that it is how we get through much of life.

Of course, “thinking fast” often leads us astray, particularly when we are engaged in the art of understanding other people. Justice Bridget McCormack of the Michigan Supreme Court and I recently wrote an article about this called “When Stereotypes Attack.” In it, we explore some of the ways in which lawyers may rely on such “fast thinking” and how it can get them into serious trouble.

In many respects, one of the most important things you learn to do in law school is to slow your thinking down. We have different labels for this: we talk about learning how to “think critically” or to “think like a lawyer.” At first, you learn to slow your thinking down, and then you get better at it, and then you can think slower faster. One of the great pleasures of teaching law school is watching students acquire the capacity to do this.

In my view, a cultivated interest in and sensitivity to diversity issues helps you develop this skill. Done right, it slows you down; it makes you ask yourself hard questions; it challenges your assumptions; it leads you to conclusions that may be personally uncomfortable but nevertheless profoundly true.

It makes you a better thinker. It makes you a better lawyer. Oh, and not incidentally, it makes you a better citizen of the world.

I’ll close with a story about this from my own practice. As you probably know, a number of years ago a suit was filed against the University of Michigan Law School challenging its affirmative action policy, which considered race as one of many factors in making admissions decisions. The case went all the way to the Supreme Court, which upheld the policy. I was privileged to be part of the team that defended the law school in that case.

When the case started, I thought that I had a good understanding of the role of race in the United States. I had lived in racially diverse neighborhoods; I had worked in racially diverse environments; I had read books—lots of books. But as the case proceeded, and as I took a much deeper dive into the issue, I came to the humbling conclusion that I understood very little about the role of race in America, and that some of what I thought I understood was dreadfully wrong.

It turns out that acquiring this art of understanding is an ongoing enterprise that requires vigilance. In my view, regardless of where you are on that journey, there is no better place to continue it than in the company of the students and faculty at the University of Michigan Law School.