Lessons in the Delicate Art of Confronting Offensive Speech

A New York Times article with that headline observes that we are “in a political season when ethnic, racist and sexual slurs, not to mention general insults, seem to have become part of everyday chatter.”

Dealing with offensive comments can be hard for people generally and there are particular challenges for lawyers.

The article states that listeners’ objections can curb the behavior, but listeners understandably fear damaging relationships and inviting retaliation.  On the other hand, when people are uncomfortable and don’t speak up, this can effectively encourage speakers to continue their offensive remarks.

“A body of psychological research shows that even mild pushback against offensive remarks can have an instant effect — as difficult as that can be, especially with a boss, a friend or a celebrity.”

One expert said that “sexual banter often takes place among men who are friends, and that ‘the function of it is to promote bonding.’”  She said that “[m]en may feel that if they challenge conversation they find tasteless, or simply don’t join in, ‘they’re spoiling the mood at a minimum and possibly putting their relationship to the group at risk,’ she said.  And sometimes they worry that ‘it will raise doubts about their masculinity or heterosexuality,’ or that they will become targets of bullying.”

Challenging others’ comments that feel inappropriate can trigger strong reactions about both people’s identities and whether they are good or bad human beings.

Experts quoted in the article suggest tactics such as changing the subject, engaging in diversionary behavior, and humor.  For example, one expert suggested a response, “I love satire. It’s so weird that people believe that for real and it’s so cool you called that out.”

The director of an LGBT project sends volunteers to go door to door to talk with people. He said, “We are seeking out people who are prejudiced, and they’re using offensive language.  And if you correct that language, just use different words yourself, and your tone and demeanor are kind, people are very responsive, and you don’t have to get into a screaming match.”

This approach seems to be based on deliberate use of empathy.  The volunteers’ kindness presumably conveys understanding and sympathy with people who use offensive language.  And it reciprocally invites the speakers to empathize with the volunteers and the people they seek to help.  The program director said that it “softens” the attitudes of about ten percent of people, so it is far from changing the attitudes of most people.  But perhaps even that ten percent is significant.

While it may be tempting to directly characterize others’ statements – such as saying, “That’s sexist! [racist, a lie, etc.]” – that approach risks stimulating escalation and defensiveness.  It may stop the immediate behavior but it may also lead to counterproductive arguments, cause resentment, and actually reinforce problematic attitudes.

Lawyers not only have to deal with their own personal reactions but also have to manage their professional responsibilities to be respectful.  This may be especially difficult when they encounter problematic attitudes from their own clients.  Lawyers often worry that clients will doubt that the lawyers will fight hard enough, so it can be particularly difficult for lawyers to challenge their clients.

While it may seem counter-intuitive to demonstrate empathy with people who express ideas that feel offensive, it may be an effective tactic.  And it may open people to be more empathetic with others.  This approach may also be helpful strategically by getting people to consider their situation more realistically, recognizing the other person’s perspective as well as that of potential third party decision-makers.

All that said, these interactions can be extremely difficult to navigate, and there is no guarantee of success.

This election can provide some teachable moments for law students about how they might handle problems when they are in practice.

Survivor: Law School Edition?

I admit, I haven’t watched the TV show Survivor for years, but I’m intrigued by this season’s version, Millennials v. Gen X, as I occasionally feel that very conflict playing itself out in my classroom.

There comes a time every fall semester, usually around the end of September, when the generational differences between me and my current crop of 1L’s become evident. It usually coincides with the due date of their first memorandum and the expectations crystalize in students’ brains. Their questions typically begin as “I have a question about citation” and end as “you really expect us to do this?” with an air of incredulity.  While I may remember my law school experience somewhat hazily at this point, I do know that if I had a question about something which was covered in class, I assumed that I had missed the information, not that my professor had either failed to convey it or had unreasonable expectations. I try to convey that it’s not me who expects something unrealistic from them, but, rather, that I am preparing them to meet the expectations of cadre of Gen X or even more seasoned attorneys who will have high expectations of their interns and associates.

Many experts have identified areas where the generations differ. Here are just a few. Gen X’ers want independence and to be given time to grapple with issues on their own, they respect authority, and do not like to be overly supervised. On the other hand Millennials crave constant communication and mostly positive feedback, do not believe that those in authority deserve respect due to rank alone, and they want supervision to the point that they collaborate with supervisors rather than producing something on their own in the first place. The conflicts are apparent. Yes, these are generalizations, but I see these conflicts play out in the classroom and anecdotally when those students first experience workplace expectations and report back to me.

Each generation has positive and less positive attributes (even my use of the term “less positive” is a nod to the Millennial to whom my comments usually go, and who would be unreasonably upset by reading that there was anything “negative” in their work). It has helped me to understand and appreciate that certain characteristics I may have viewed as laziness or lack of initiative are not individual characteristics, but simply a different mental approach to work and how it is produced. I have tried to adopt some of the positive attributes they bring to the classroom, such as embracing technology, engaging in more group work, and providing more opportunities for ungraded assessment. By doing so, I let go of a characteristic of my generation:  reluctance to change.

Just as sure as the fall brings the conflict, I can also say that by the spring semester and beyond, the conflict subsides and we co-exist. Everyone survives, and my students generally report being very well prepared for their work. Unfortunately, though, none of us wins a million dollars!



New Article: “When Interests Converge: An Access-to-Justice Mission for Law Schools”

These are challenging times in law schools.  Law school enrollments remain low and graduate unemployment remains high.  Many claim there are too many lawyers to go around and law schools are just making matters worse by continuing to educate prospective lawyers.  But the problem is not really that there are too many lawyers.  Indeed, roughly 80% of low-income and half of middle-income Americans face their legal problems without a lawyer.  Too many face their legal issues without the benefit of legal representation at a time when too many law school graduates are unemployed or underemployed.  In order to overcome this paradox, I argue in a forthcoming piece in the Georgetown Journal on Poverty Law & Policy,  that law schools should embrace an access-to-justice mission, one that would help focus law school teaching, scholarship, and service on the justice gap and help align the interests of those who want to ensure everyone has access to a lawyer who needs one with those who want law schools to continue the important work of educating the next generation of lawyers.  Below is the abstract to “When Interests Converge: An Access-to-Justice Mission for Law Schools.”  A draft can be downloaded here.  Comments welcome.

In recent years, law schools have faced a crisis brought on by the external forces of technology, automation, and legal process outsourcing that has translated into poor job prospects for their graduates, and, in turn, a diminution in the number of students interested in attending law schools.  Such external phenomena are joined by internal critiques of law schools: that they have failed to educate their students adequately for the practice of law and have adopted dubious strategies without a defining mission, all at a time when the market for legal services seems to be changing, perhaps dramatically. Paradoxically, while graduates face diminished job prospects, there is still a vast justice gap: the inability of millions of Americans to obtain legal assistance when facing a legal problem.  There is thus an interest convergence between those who might want access to a lawyer and the law schools that strive to educate the next generation of lawyers and the ones after that.  This Article uses this interest convergence—and the late Derrick Bell’s “Interest Convergence Theory” as a lens through which to view it—as an opportunity for law schools to retool their missions to confront the access-to-justice crisis facing many Americans.  It argues that law schools should embrace an access-to-justice component to their missions to help increase demand for legal services, re-establish the value of legal assistance to the community, restore the importance of the legal profession in preserving and extending societally important rights and interests, and improve the demand for legal education.


Albany Law’s New Two-Year JD

In recent years, the late Antonin Scalia questioned whether the traditional law school education has to take three years, with the justice griping that too many upper-level classes explore fluff and are not focused on educating students in the law.  Similarly, law school critic Brian Tamanaha has also said there should be a two-tiered system of law schools: one elite track that promotes legal scholarship, and another, non-elite track, that has a program of study that transfers basic legal skills to its students and takes just two years to complete.

President Obama, highlighting ways to make law school more affordable and lower student debt burdens, joined in the chorus, opining that perhaps law school could be completed in two years.  Obama’s concerns are shared by Tamanaha: i.e., that law school is too pricey at current tuition rates and one way to provide value to students while keeping costs down is to eliminate one year of training.

At the same time that these critics from without and within the academy have argued that law schools spend too much time with their students, the practicing bar has long lamented that when law students graduate, they are not “practice ready”: their law school training was not sufficient for them to engage fully in the practice of law when they leave law school.  Moreover, going back at least over twenty years, to the American Bar Association’s MacCrate Report, law schools have been told they are not instilling in law students the skills and values essential to the practice of law.  Echoing such concerns, and weighing in on the law-school-in-two-years debate, Justice Ruth Bader Ginsburg said that two years would be fine for a law degree, but it would not teach students the craft of lawyering nor would it instill in them the values of the profession.  Similarly, I have argued elsewhere that so-called “Law and…” courses, which Scalia decried, help round out the law school education and expose students to new ways of looking at the law and their place within the legal profession.

Indeed, it is hard to square the “law schools are doing too much” argument with the “law schools are doing too little” one.  Responding to the latter argument, schools have expanded their offerings to include more experiential components and more values-based training in an effort to prepare students to serve clients and participate fully in the profession immediately  upon graduation.

In an effort to respond to the first argument, though, a number of law schools have begun to offer two-year juris doctor degrees, including all of the credits one would earn in three years into a two-year course of study.  One would think that this would mean schools are offering students a bargain, lopping off one year of tuition for the ability to graduate a year early.  Surprisingly, most schools offering a two-year JD are not reducing tuition; they are charging students three years of tuition for a two-year course of study.

Recently, however, my institution, Albany Law School, responding to the critics, like the President, who argue that law school is too expensive, has announced it will offer a two-year JD, at the cost of two years of tuition.  Like other two-year JD programs, the academic program of study is the same in terms of how many credits students must complete to earn their degree, whether they do it in two or three years, but the cost of the program is one-third less than the traditional JD.

We believe the program will appeal to prospective students who are interested in pursuing a degree on an accelerated track so that they can get back to work sooner after starting their studies and save some money while they are doing it.  We anticipate that this will attract students who are already in the working world, who are cost conscious, sensitive to losing the three years in their professional development that a traditional three-year program would cost, and hope to enhance their credentials and earning potential in as short a time as possible.

The program is being launched with a January 2017 start date.  Time will tell whether such an approach will attract students and offer them real value, both in the short and long run.

Let Me Introduce Myself

My name is John Lande and I just became a blogger with BPLE.  I want to tell you about my background and interests and the kinds of things I expect to write about in this blog.  This post also includes links to some resources you might be interested in.

I taught at the University of Missouri starting in 2000 and I retired a year ago, beginning what I call “unbundled retirement.”  I don’t teach or attend faculty meetings anymore, but I still want to stay involved in things that I care about.

Two years ago, I started blogging on Indisputably, a blog of law professors who focus on dispute resolution.  I love blogging, which I will continue in retirement.

Here’s a link to my website, which includes more information about me and links to my publications, some of which are not on ssrn.

Focus on Dispute Resolution

My career has focused on dispute resolution.  I graduated from law school in 1980 and practiced law for a while.  I felt uncomfortable with the adversarial dynamics of legal practice and I took my first mediation training in 1982 and then practiced law and mediation for several years.

In 1989, I went to grad school in sociology at the University of Wisconsin, studying sociology of law and dispute resolution.  For my masters thesis, I interviewed people who handled employment discrimination disputes within their organizations.  For my doctoral dissertation, I interviewed business lawyers and executives about their attitudes about litigation and ADR.

Most people in the “ADR” field, including me, think that it is misleading to refer to it as “alternative dispute resolution,” but the label has stuck.  I don’t think that there’s an ideal alternative and many of us simply use the term “dispute resolution” or “DR,” even though that’s problematic too.

Many people in the DR world think of “ADR” as involving neutrals (other than judges).  But focusing only on neutrals doesn’t fit because unmediated negotiation is recognized as a major sub-field.  Indeed, much of what we teach and do is advocacy in processes like mediation and arbitration.  Here’s one post I wrote musing about what ADR is and isn’t and here’s another one.  They reflect my view that lawyers and judges are dispute resolution professionals, not just mediators and arbitrators.

In the last decade, I wrote a series of articles about collaborative law and cooperative law, which are processes in which lawyers and clients start by trying to negotiate instead of starting in litigation and negotiating at the end of a case, after most discovery has been completed.

I think that these processes have real value though they are used almost exclusively in family law cases and only by agreement of both sides.  Collaborative law involves a “disqualification agreement,” which precludes the collaborative lawyers from representing the clients in litigation if needed.  This makes the process a non-starter for many lawyers and parties, especially in cases other than family law.

I wrote a book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money, in which I applied some concepts from collaborative and cooperative law to describe an approach that lawyers can use unilaterally in any type of case.  This book was based, in part, on interviews with lawyers who actually use this general approach as opposed to lawyering with unplanned late negotiation.  I later did another study along the same lines based on more interviews with lawyers, Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better.

Focus on Legal Education

I developed and maintain a website, Dispute Resolution Resources for Legal Education (DRLE), which includes syllabi, teaching materials, and a list of DR programs and links.  It also includes instructions for subscribing to a listserv promoting discussion of issues relevant to DR in legal education.

In 2010, I wrote my first article on legal education, co-authored with Jean Sternlight, The Potential Contribution of ADR to an Integrated Curriculum: Preparing Law Students for Real World Lawyering.  This piece describes how ADR concepts and skills are integrated into other courses and suggests ways that this could be done more.

This article inspired the development of the Legal Education, ADR, and Problem-Solving (LEAPS) Project of the ABA Section of Dispute Resolution.  LEAPS developed a great website with lots of resources about how to increasingly incorporate “practical problem solving” into law school curricula.  Perhaps of particular interest to BPLE readers, this website has a list of textbooks in a wide variety of subjects which include a problem-solving approach as well as a list of colleagues who would be happy to help you incorporate problem-solving techniques in your courses in particular subjects (e.g., civ pro, contracts, etc.).

In 2012, I organized a symposium at Missouri entitled, “Overcoming Barriers in Preparing Law Students for Real-World Practice.”   For the symposium, I wrote an article, Reforming Legal Education to Prepare Law Students Optimally for Real-World Practice, which incorporated major themes in the symposium and included my ideas about legal education reform.

That year I also started teaching negotiation and I experimented with lots of techniques in that course.  In Teaching Students to Negotiate Like a Lawyer, which I wrote as I embarked on this experiment, I described these techniques.  In Lessons from Teaching Students to Negotiate Like a Lawyer, I described what worked and what didn’t work so well the first time I taught it.

One of my major insights from this experience was the great value of using multi-stage simulations in addition to one-stage simulations.  Most DR courses rely primarily or exclusively on one-stage simulations in which students are given fact patterns to enact for perhaps 10-60 minutes.  While these simulations are useful in prompting students to get into roles of lawyers, clients, and others, students don’t get into their roles in single-stage simulations as much as multi-stage simulations.

I described my use of multi-stage simulations in the two articles I just mentioned about teaching negotiation.  I prepared an eight-page document with suggestions for instructors who want to use multi-stage simulations in their courses.  And I solicited descriptions from colleagues about how they use multi-stage simulations in a wide range of courses, which are posted on the DRLE website.

I recently wrote my “Last Lecture” article, summarizing advice for law students based on my teaching and scholarship.

Blogging for BPLE

As a blogger on Indisputably, I have written various posts about legal education, generally tagged “for teachers and students.”  I have written some on particular topics that BPLE readers might be interested, including simulations, legal skills and techniques, and student assessment and grading.

I have occasionally passed along some posts to Mary Lynch that I thought BPLE readers would be interested in.  After I wrote one recently, I thought it would make sense for me to post some myself from time to time.

For example, you might be interested in my posts Non-Apology Apologies, Ethics, and Lawyers and Training Law Students to be Leaders.

By joining BPLE, I hope that I can serve as a bridge between faculty particularly interested in dispute resolution and those particularly interested in legal education issues.  If you have some interest in DR, you might check out or subscribe to Indisputably.  Conversely, I am encouraging my friends on Indisputably to check out or subscribe to BPLE.

I hope that you enjoy my posts.  I welcome your comments online or off.



Looking Beyond the Trends: Who’s Our Curriculum Really For?

Just catching up on my summer reading and I came across a short piece titled, “My Best Marketing Advice for Lawyers,” by John H. Fisher, Esq.  In the article, Attorney Fisher responds to an inquiry for his best marketing advice by saying: “Identify your ‘Ideal Client’ and nurture and cultivate the relationship with your Ideal Client through a series of educational and informative newsletters, speaking events, books, and social events.” 1  This three-step plan: paint a picture of your ideal client, attract your ideal client, and nurture the relationship with your ideal client was clear, linear, and supported with some truly clever and constructive examples of providing best tips and advice – for your referral partners. The article concludes that this plan has the power to change law practices, create goodwill, and perhaps make the actor a “mini-celebrity among peers.”  Apropos of the previous blog, such advice seems consistent.  And, to be fair to Mr. Fisher given what follows, he was posed the question, and we are still in the post “failing” law school phase.


Two of several things that give me pause here, are in who is assumed to be the “ideal” client and how we are affecting our students’ priorities when we offer and even encourage them to take “law” school courses in economic trends in the legal profession and personal finance.  The apparent underlying assumption of both articles is that the “ideal” client is someone who will financially advantage the lawyer, and/or that the wealth of our profession and ourselves is worthy of credit in a school devoted to the study of law. Understanding that making a living is important, I’d note that there are no major stories about whether lawyers make a “living wage” either here2 or in other nations, or of lawyers who cobble together several jobs over the long-term to support themselves or a family.  But I did, however, recently listen at a ceremony where the head of a non-law institute spoke eloquently about the goal of that educational institution as doing justice and having their faculty involved in field-work toward helping others establish workable justice systems.  Non-lawyers.


Whenever students struggle with understanding a statute or regulation and where I sense a disconnect, I encourage asking who benefits from a policy or something being advocated.  Then, recognizing how easy it is to go along with an idea that is being advocated when it is self-benefitting, I encourage students to ask who is left out and, if appropriate, why we continue to allow others’ priorities to be that determinative.

Expanding the Curriculum to Build Better Lawyers

Just finished reading a fascinating piece in the Journal of Legal Education by Pamela Bucy Pierson, Bainbridge Mims Professor of Law at the University of Alabama School of Law.  Her article, Economics, EQ, and Finance: The Next Frontier in Legal Education,  describes the results of her survey of how law schools are covering the topics of: (1) economic trends in the legal profession; (2) emotional intelligence in issues such as managing stress, building resilience in the practice of law; and (3) personal financial planning for tomorrow’s lawyers.  The article outlines why each of these topics is essential to preparation of tomorrow’s lawyers.  Ninety-one law schools responded to the author’s survey on this topic, and the results are encouraging. piersonchart  The descriptions of courses and ancillary programs addressing these topics provides a rich source of ideas for approaches to building these topics into the curriculum. So grab that copy of the Journal that is likely piled in your mailroom or read the article on SSRN

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