I Am a Liberal, I Swear.
I lived in Oklahoma when I was young. Most politicians from my home state were democrats, and the term “yellow dog democrat” was a common label for my fellow citizens. The saying went that these folks would vote for an old yellow dog if that was the party’s candidate. I was a yellow dog democrat. For the most part, I still am. Oklahoma is a bright red state now, but that is a topic for a different day.
I don’t often talk about politics in this space, and with good reason. Given the current tribalism in American politics, starting a conversation with one’s political leanings is a great way to stop a conversation. More importantly, my co-writers (and editors of this newspaper) discourage political musings. Don’t worry Gentle Reader, this is not a political column. Given my subject matter this month however, I felt it necessary to state my yellow dog liberal bona fides lest there be any confusion. I am a liberal.
I have ranted in the past about continuing legal education requirements – specifically the requirement for professionalism training. My home state requires two hours of such ethical education each year. I believe that this time would be better spent elsewhere. If one needs training to behave as an ethical professional, two hours is woefully inadequate. Such lawyers are typically unaware that they are not ethical professionals anyway.
I just learned that my state added a new CLE requirement. In addition to two hours of ethical education we must now take training to be better people.
The actual topic is “cultural competency, diversity, inclusion, and implicit bias.” I understand the words and even the rationale for new classes, but I have no concept of how this is to be taught. As a liberal, I should applaud this development. As you might suspect, I don’t.
It would be easy to write this development off as outrage fetishists getting a foothold. My complaint is less about the requirement and more my frustration with its futility. Addressing this problem among attorneys requires a massive attitude change, not a band-aid on a sucking chest wound.
Ask any judge about the latest incompetent practitioner sighting in their courtroom and they will have a story. Boors wreak less havoc than morons. Taking an hour of continuing legal education away from the rules of evidence or civil procedure is a step in the wrong direction in the mind of this writer.
Can one overcome a bias that is implicit? I regularly question jurors and have yet to meet more than a handful that acknowledge they hold a bias against my client. Most would say, truthfully, that they don’t think they are biased. This is the very definition of an implicit bias!
One’s language reflects beliefs. Certain words which were acceptable in the past no longer have a place in a lawyer’s vernacular. This change isn’t unique to the practice of law and reaches across society. Pick up a newspaper on any given day and find a celebrity who used forbidden language that cost him or her a job or endorsement deal.
If George Carlin were still alive, he would have to update his list of seven words you can’t say on television. Most of the words on his list are no longer taboo for television anyway. That includes mainstream television, not just cable.
Do lawyers really need to spend an hour each year making sure their no-no word list is up-to-date? Younger lawyers certainly don’t and even older lawyers know that certain words should not be spoken, regardless of what used to be acceptable. I am hopeful when I say that it isn’t just the words that have changed, it is our attitudes.
That the legal profession looks more diverse than it used to is an understatement. Looks can be deceiving. The upper echelons at big firms are disproportionately white and male even though women and people of color are entering the profession in higher numbers than ever before, and that trend is not new. I think it naïve to believe that an hour of education each year is going to shatter the glass ceiling.
The increased number of women on the bench has had at least one negative effect. A retired female judge told me that it is harder to get judicial pay raises with more women on the bench because of the perception that female judges have husbands and therefore access to a second salary while male judges are still viewed as the breadwinners in their family. My nonlawyer wife had the same issue in her profession. Given that legislatures enact judicial pay raises, it is unlikely that a diverse minded Bar is going to move the needle much on this problem. Especially given the dearth of lawyers in the legislature.
Believe it or not, I’m looking forward to my “cultural competency” education next year. The mere fact that I can’t imagine what the curriculum will look like tells me that I will probably learn something. As with most aspects of my life, I don’t know what I don’t know. They could literally write books about the things I don’t know, and they have- they even call them books.
While I suspect that these issues will resolve themselves over time it is hard to fault the Bar for being proactive. If Bar leadership really wants to make lawyers be better people, I humbly suggest that they require a course on how to tip.
©2019 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He, his, and him pronouns are preferred. Comments or criticisms about this column may be sent c/o this newspaper or directly to Under Analysis via email at farris@farrislaw.net.