An Argument for Cultural Competency Training in the Legal Profession
There is no disagreement about the value and benefits of practicing law in a diverse legal community. Contra Costa County offers a rich resource of cultural diversity reflective of our international communities. The wealth of our collective experience and diverse backgrounds enriches our system of justice and supports an evolving and expanding jurisprudence of inclusion. Several law practices have recently embraced mandatory training in the area of cultural competency. They do this not just to satisfy MCLE credits for the elimination of bias, but to truly understand the clients they serve, the dynamic workforce that forms their practice, and the larger community in which they practice law. I write this article to encourage our legal community to make a commitment to cultural competency training as an essential component of a practice skillset.
Prior to my appointment to the court, I practiced law for 24 years throughout the state. Most of my clients were public entities and elected officials who represented diverse communities. I was also a partner in a law firm that invested in cultural competency training. This investment not only enforced the benefits of diversity, but also resulted in developing satisfied clientele and increased financial opportunities.
I practiced law before many courts that welcomed diverse practitioners. However, that was not always the case. Early in my career, I experienced a few salient encounters that suggested that some members of the bench lacked meaningful exposure to the rich cultural and ethnic dynamic of California, which in turn, resulted in manifestations of bias and insensitivity. These results were unacceptable then and are unacceptable now.
During one of these early encounters, I appeared in court (outside of Contra Costa County) for a motion to confirm a settlement in a complex products liability case. When my case was called, I argued that my client’s settlement met the legal requirements for a finding of good faith and that the negotiated disposition was well “within the ballpark1.” Out of left field, the judge wanted to know if I was applying the “laws of China,” rather than the laws of California. He also jokingly questioned, on the record, if there were even ballparks in China.
As a Filipino-American, I was the only litigator who appeared to have Asian ethnicity in court. I interpreted these questions, and the manner in which they were asked, as an obvious reference to my ethnicity. I responded respectfully, but tersely, that I had submitted the controlling decisional authority. I then asked if the court required anything further. Perhaps, the acidic tone of my response betrayed my obvious displeasure with the inappropriate comments. The judge granted my motion, but with an admonishment to “watch my tone.” He was not expecting such an assertive reaction to what he believed was just a joke.
I was indignant. This micro-aggression made me feel that the merits of my argument were questioned not on their quality, but because I am a member of an ethnic minority. I questioned the judge’s competency to sit on a bench that is supposed to serve all Californians. Indeed, the rules prohibit any judge from engaging in any “speech, gestures or conduct that would reasonably be perceived as bias or prejudice” based on race or national origin, among other things. (Code of Judicial Ethics Canon 3(B)(8))2.
More recently, in 2017, shortly after I was appointed to the bench, but before I was sworn-in, I sat in court to observe my colleague run a criminal calendar. Near the end of the calendar, a prosecutor approached me and asked me what case I was there for and if I knew the name of my public defender. He did not assume that I was court staff, an interpreter, or an attorney. It was unsettling to me that the prosecutor concluded that I was an indigent criminal defendant simply because I was sitting in court. I could not help but believe that the prosecutor inadvertently jumped to such a conclusion because I am a member of an ethnic minority.
My colleague, Judge Hiramoto, saw what was happening at the time and introduced me as the newest judge in Contra Costa County. The prosecutor’s face betrayed his remorse. However, I never received an acknowledgement from the prosecutor for the insensitive welcome. Clearly, the Rules of Court require lawyers to refrain from manifesting by words or conduct bias or prejudice based on race, and national origin, against parties, witnesses, counsel or others.
I illustrate these two incidents not to shame two individuals. But, to suggest that the cultural bias that appeared over 25 years ago still exists in our legal community. Accordingly, I encourage us to engage in cultural competency training to promote a justice system that strengthens our rich cultural heritage. As California steadily becomes more diverse, it is essential that the legal community explicitly focuses on developing our collective levels of cultural proficiency. The ability to proficiently communicate across cultures and to value the unique differences among us is essential to serving clients. It is also essential to preserving a justice system that serves the community. To be effective, cultural competency training should require components on understanding cultural differences. It should also mandate reflective self-evaluation at individual and organizational levels. It would need to emphasize recognition of stereotypes and attitudes that would lead to bias. Finally, this training would need to be conducted regularly. Not just one time.
Investing in cultural competency training will help the legal community evolve beyond mere tolerance. It will help all of us create a welcoming environment that would greatly enhance the inclusivity of our system of justice.
The views expressed herein are my own and do not necessarily reflect the views of my colleagues on the bench, the administration of the Contra Costa Superior Court or the Contra Costa County Bar Association.
1 Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488; Proposition 51.
2 As a postscript, this particular Judge retired after facing criminal charges and pending discipline before the Commission on Judicial Performance for multiple reasons.