Litigation

WORDS MATTER. PERHAPS ESPECIALLY OURS AS LAWYERS.

By Rupa G. Singh

Rupa G. Singh is a certified appellate specialist who handles complex civil appeals and critical motions in state and federal court at Niddrie Addams Fuller Singh LLP, San Diego’s only appellate boutique. She is founding president of the San Diego Appellate Inn of Court, former chair of the San Diego County Bar’s Appellate Practice Section, and a self-proclaimed word enthusiast.

Words matter, and the right words matter most of all. In the end, they’re all that remain of us. — John Birmingham

My grandfather was a well-respected, reasonably successful lawyer in post-colonial India. Lawyers also seem disproportionately likely to lead nation-states, movements, and revolutions, and to transition seamlessly into politics and government. But I didn’t become a lawyer to pay homage to family tradition. Nor did I aspire to lead a movement or rise through the ranks in the public sector.

Rather, I gravitated towards the law because of how it quietly empowers words over weapons. Whether it’s determining who owns a parcel of land, what criminal act warrants life in prison, or how to award custody of children after a contentious divorce, the law represents our agreement to forsake fists, swords, and guns in favor of words to resolve the most intractable of human disputes.

Recently, though, I have been forced to think more deeply about the power of our pen as lawyers. In her thought-provoking presentation, Professor Leslie P. Culver used anthropological, legal, and academic research to explain persuasively that our implicit biases affect the words we choose in our legal advocacy, allowing us to either unconsciously reinforce or consciously exploit prevalent stereotypes. (Leslie P. Culver, White Doors, Black Footsteps: Implicit Bias & Cultural Consciousness in Legal Writing, SDCBA App. Prac. Sec. Presentation (June 24, 2020); see also < www.law.uci.edu/faculty/visiting/culver/ >.)

Wait, what? The implicit biases that decades of research shows we all harbor are somehow reflected in our oral and written advocacy on behalf of clients? Yes, and let me count the ways. Confirmation bias causes us to pay more attention to information that confirms our existing belief system and to disregard information that is contradictory, for example, discounting the possibility of women perpetrating sexual harassment. (Kathleen Nalty, Strategies for Confronting Unconscious Bias (2017) The Fed. Law. 26, 28.) Attribution bias causes us to make more favorable assessments of behaviors by those in our “in groups” while judging those in our “out groups” by less favorable group stereotypes, for example excusing analytical errors by White males as mistakes while believing the same mistakes by their Black counterparts are intellectual inferiority. (Ibid.) Availability bias causes us to default to “top of mind” information, such as automatically picturing a man when describing a “leader” and a woman when describing a “support person.” ( Id. at p. 27.) Affinity bias — the tendency to gravitate toward people who are more like ourselves in interest and background — leads us to invest more energy and resources in those in our affinity group while unintentionally leaving others out. (Id. at p. 28.) Narrative bias — the “pervasive bias of stories, manners, sensitivities, and paradigms” — allows us to discuss as “neutral” information that dredges conflict for others. (Leslie Espinoza, The LSAT: Narratives and Bias (1993) 1 Am.U.J. Gender & L. 121, 131-135.) For example, we may argue that women’s entry into the workforce is harmful to children or that the Obama presidency established that we live in a post-racial world while.

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As one researcher puts it, “[w]e are mistaken if we treat law as an objective and neutral body of rules and values, and fail to recognize how white, male, middle-class experience and values dominate the legal system.” (Espinoza, supra, at pp. 131-135.) And it’s not just in the much-studied arena of criminal justice, but at every level and in every area of the law. (E.g., Sheri Lynn Johnson, Unconscious Racism and the Criminal Law (1988) 73 Cornell L.Rev. 1016, 1018; Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit (1995) 83 Cal.L.Rev. 733, 743 & fn. 42; Thomas W. Joo, Presumed Disloyal: Executive Power, Judicial Deference, and the Construction of Race Before and After September 11 (2002) 34 Colum. Hum. Rts. L.Rev. 1, 4.)

In my field of civil litigation and appeals, for example, consider the motion to recuse an African-American district court judge to whom a case by Black plaintiffs alleging racial discrimination was assigned; according to defendants, the judge was biased because he had given a speech to Black historians and had an “intimate tie with and emotional attachment to the advancement of black civil rights.” (Penn. v. Local Union 542, Int’l Union of Operating Engr’s (E.D.Pa. 1974) 388 F.Supp. 155, 157.) In denying defendant’s motion, the court called out its racist premise — that black judges, unlike their white colleagues, could not be impartial in deciding a case involving parties of their own ethnic background. (Id. at pp. 163-165.)

Notably, scholars argue that we cannot be, and should not strive to be, blind to issues of race, gender, age, sexual orientation, socio-economic class, physical disability, or mental health; these issues and our unconscious reaction to them are always present. (Stephanie M. Wildman, et al., Privilege Revealed: How Invisible Preference Undermines America (1996); Arthur S. Miller, The Myth of Objectivity in Legal Research & Writing (1969) 18 Catholic U.L.Rev. 290, 299, 304.) But, in addition to becoming aware of our biases and how they might make us act, we are also urged do the same in our words. (Culver, supra, at p. 37.)

Reflection on this advice leads to my next revelation: We are obligated as lawyers to choose our words in briefs and arguments based on concerns beyond our duty to credibly yet zealously advocate for our clients. In fact, being an officer of the court requires us to be more than just truthful; we must also try to dispel bias, and, if possible, plant counter-stereotypes while pursuing our client’s interests. How do we do this?

First, we can strive to use gender-neutral language, which rules suggest some courts to aspire to already — for example, calling a party a firefighter, not a fireman; a police officer, not a policeman; chair, not chairman; flight attendant, not stewardess. (E.g., Cal. Rules Court, rule 10.612; Marilyn Schwartz, Guidelines For Bias-Free Writing (1995) p. 1; Casey Miller & Kate Swift, The Handbook of Nonsexist Writing: For Writers, Editors and Speakers (2d ed. 1988).)

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Second, we can be precise in using terms of cultural or ethnic identity, assuming they are relevant to the discussion — for example, the terms “Hispanic,” “Spanish,” “Latino/Latina,” and “Chicano/Chicana” are not interchangeable, but mean different things. (Lorraine Bannai & Anne Enquist, (Un)Examined Assumptions and (Un)Intended Messages: Teaching Students to Recognize Bias in Legal Analysis and Language (2003) 27 Seattle U.L.Rev. 15-18 & fns. 60-68.) Third, we can examine vocabulary specific to our area of practice for terms that seem ubiquitous but carry cultural baggage we may not mean to employ — for example, we attach different cultural meaning to “fathering” a child verses “mothering” a child, and also exclude same-sex parents when using these terms, so family law practitioners might describe “parenting” efforts when advocating for custody or visitation in a child’s best interests. (Id. at pp. 11-13.)

Fourth, we can examine how to frame the issues to a tribunal. Take a defamation case: We can choose to frame the issue around the erroneous determination that a female plaintiff is only damaged because of her heightened sensitivity or lack of thick skin, subtly naming and reinforcing the stereotype that women lack the ability to loosen up or laugh at themselves. Or take a personal injury case: We could plausibly note, during our discussion of the facts, that plaintiff is a female construction worker or a male receptionist; even though these facts are not necessary the issue of liability or damages, we can put a name to, and challenge, cultural stereotypes about “male” and “female” professions. As USCD cognitive scientist Lera Boroditsky has explained, “[t] hings that are named are the ones most likely to be thought about and to be visible in our consciousness” but “what isn’t named can’t be counted … [or] be acted upon.” (Dina Fine Maron, Why Words Matter: What Cognitive Science Says About Prohibiting Certain Terms (Dec. 19, 2017) Sci. Am.)

This brings up the question, of course, of how to balance such efforts with our duty to only include “legally significant facts,” that is, facts “a court would consider significant either in deciding that a statute or rule is applicable or in applying that statute or rule.” (Laurel Currie Oates, et al., The Legal Writing Handbook (3d ed. Aspen L. & Bus. 2002) p. 708-13.910.) Take the debate over whether to mention a Black defendant’s race in a statement of facts when it is not relevant to applying any criminal statute or rule. (The Redbook: A Manual on Legal Style (Bryan A. Garner ed. 2002) pp. 272-273.) Because its only relevance is to evoke the decision-maker’s unconscious bias, this fact seems best left out even under the rule of “legally significant” facts. Plus, zealous advocacy does not mean unprincipled advocacy; we just need to decide which principles are important enough to uphold even as zealous advocates. Navigating this issue is a complicated question, with a disfavored yet predictable answer — it depends, both on the advocate and the case.

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That brings me to a final question — does this excruciating exercise in self-examination, thoughtful research, and careful advocacy really matter? Can we as individuals really battle sexism, racism, agism, xenophobia, or homophobia with a few word choices in legal advocacy? This time the answer is not a dissatisfying “it depends,” but a resounding yes.

“Implicit biases are malleable; therefore, the implicit associations that we have formed can be gradually unlearned and replaced with new mental associations.” (Cheryl Staats et al., State of the Science: Implicit Bias Review (Kirwan Inst. 2015) p. 63.) Reading about successful female leaders or merely viewing photographs of women leaders has been shown to reduce implicit gender bias, while findings in “neuroplasticity” suggest that our thoughts can force our brains to alter their structure and function, and even generate new neurons to adapt, heal, and renew after trauma or disability. (Sharon Begley, Train Your Mind, Change Your Brain: How a New Science Reveals Our Extraordinary Potential to Transform Ourselves (2007).) As Dr. Kara Lyons-Pardue, an associate professor at Point Loma Nazarine University, puts it, “[o]ur words have the potential to create imaginative spaces.” (< https://viewpoint.pointloma.edu/how-much-do-our-words-matter >.) Biologist Dr. Mark Pagel has even suggested that language is “the most powerful, dangerous and subversive trait that natural selection has ever devised” because it allows us to “implant” our ideas other people’s minds, “rewiring” them, while another scientist has called words and the ideas they convey “one of the most resilient parasites.” (Compare < www.ted.com/talks/mark_pagel_how_language_transformed_humanity/transcript#t-153638 > with < https://www.youtube.com/watch?v=joj7_brYWt8 >.)

And so, I come full circle, recognizing the tremendous power of words, especially in the law, and especially to me in becoming a lawyer. I may not have chosen this profession because of my grandfather, but I hope at least one of my children or grandchildren will also choose it, and make striving for meaningful advocacy a family tradition, perhaps the only thing that remains of me.

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