Cunningham, Clark D.

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Georgia State University College of LawReading RoomFaculty Publications By Year Faculty Publications1-1-2003But What is Their Story?Clark D. CunninghamGeorgia State University College of Law, cdcunningham@gsu.eduFollow this and additional works at: https://readingroom.law.gsu.edu/faculty_pubPart of the Legal Ethics and Professional Responsibility Commons, and the Legal ProfessionCommonsThis Article is brought to you for free and open access by the Faculty Publications at Reading Room. It has been accepted for inclusion in FacultyPublications By Year by an authorized administrator of Reading Room. For more information, please contact mbutler@gsu.edu.Recommended CitationClark D. Cunningham, But What is Their Story?, 52 Emory L.J. 1147 (2003).BUT WHAT IS THEIR STORY?'Clark D. Cunningham*I'm going to use much of my time to show you excerpts from a movie. SoI invite my fellow panelists to take a front row seat so they can enjoy themovie with everybody else.Much of the material that I am going to talk about today is on the websiteof the Effective Lawyer-Client Communication Project.' At the end of thematerials on that website is a list of the different scenes from the movieAmistad that I am going to show you today, with time codes to help you locatethe scenes if you view the movie yourself.How many have seen the movie Amistad? The director was StephenSpielberg. The move received one academy award nomination: bestsupporting actor for Anthony Hopkins who played the role of John QuincyAdams. Very briefly, here's the background of this 1997 movie. It's the storyof Sengbe, a West African who was captured by Spanish slave traders in 1839and brought to Cuba where he was sold into a life of plantation labor. On theway to this plantation in Cuba, however, Cinque, as the Spanish called him,broke free of his shackles and with 52 other Africans took over the slave ship,which was named Amistad. They spared only two Spaniards whom theyordered to sail for Africa, but the Spaniards instead steered along the Americancoastline until a U.S. Navy vessel intercepted them off Long Island Soundabout two months later.Cinque and the others were imprisoned at New Haven, Connecticut afterthe ship was brought in. Abolitionists took up their cause and began a longlegal battle to win their freedom. They were claimed as property by those whohad purchased them and charged with murder by the government of Spain.Cinque insisted he was a free person who had fought to reclaim his rights. HisI This transcribed presentation for this Symposium was based on research contained in an unpublishedmanuscript by Clark D. Cunningham, What Is Their Story?, available at http://law.gsu.edu/Communication/AmistadEssay/.htm (last visited 6/11/03).W. Lee Burge Professor of Law and Ethics, Georgia State University College of Law, Atlanta, GA. E-mail: cdcunningham@gsu.edu.1 http://law.gsu.edu/Communication/ [hereinafter ELCC Website].EMORY LAW JOURNALcase finally came to the United States Supreme Court in 1841, where formerPresident John Quincy Adams represented him successfully, overcomingpressures from both the White House and southern politicians to win a victorythat marked a turning point in the struggle to end slavery. Vindicated by thisdecision, Cinque and his companions sailed home to Africa.In the first scene listed on the website (but not shown today), one characteris a white gentleman named Lewis Tappan, an actual historical figure who wasa leader of the abolitionist movement. His companion is played by MorganFreeman and is a character created by the movie makers called TheodoreJodson. A compilation of various historical figures, he's an ex-slave who isactive in the abolitionist movement and was actually the one who broughtTappan's attention to the Amistad case. The third character is a rather scruffylooking young lawyer, Roger S. Baldwin, the person that they somewhatreluctantly retained to help them in their efforts to free the Amistad prisoners.Now by 1839, the United States, Spain, and England had all agreed bytreaty to end the African slave trade, which is why it is critical for theSpaniards who survived and were trying to reclaim Cinque and his companionsto claim that their cargo were people who were born into slavery in Cuba-because if they were born into slavery in the New World, the Spaniards had notviolated the treaty. But if they had, as it turned out to be the case, beencaptured in West Africa and brought across the ocean, the Spaniards hadviolated the treaties.Now, I'm going to jump into a scene where Baldwin accompanied byTappan and Jodson go to the Naval prison facility where Cinque and hiscompanions are being held. Baldwin suspects that they were not in fact born inCuba but were captured illegally in West Africa. And so he meets with hisclients for the first time.Begin the show. [Subtitled dialogue mixed with English. Baldwin isaccompanied by a professor of linguistics who is as clueless as Baldwin aboutwhat Cinque is saying, but the linguist pretends to be translating. Here aresome of the subtitled responses by Cinque and his companions: "What do youwant? ... Is he here to help us? I don't know .... What does he want? ...He's an idiot. He just likes to hear himself speak."]When I first saw this movie, I was probably the only person in the theaterwho thought, "This is a movie about lawyer-client relationships!" But you canobviously see why as someone who's interested in lawyer-client[Vol. 52BUT WHAT IS THEIR STORY?communication I was captured by this and the following scenes. The fact thatthey speak different languages to me is a metaphor for what actually happensbetween lawyers and clients all the time. Even though they appear to bespeaking the same language, there's often a real lack of understanding and it'snot just because lawyers sometimes tend to use legal terms that are not familiarto the lay person.You'll notice that Baldwin does a couple of things in this scene, which arevery typical of lawyers, that have nothing to do with the fact that he doesn'tspeak their language and they don't speak his. He has, as very many lawyersdo, already developed a theory of the case before he meets his clients for thefirst time. He's figured out that the way to win this case is to prove that theycame from West Africa. (It turns out by the way to be a good theory.) But hehasn't talked to them before he develops this theory. His purpose for meetingwith them is to gather facts from them to support his theory of the case whichhe has already developed. I think many of you would recognize this is a verycommon thing that lawyers do: They look at the client even in the very firstmeeting as sort of a source of raw material, facts needed to prove a case.Baldwin never explains, through his ineffective translator, why he's askingthese questions. He just asks the questions. He never gives them anopportunity to ask him any questions. In this way, I think, this little interactionis a nice metaphor or fable for what I think happens in lawyer-clientcommunications all the time. It's also rather nice that he thinks he'scommunicating with them and he's not.This website that I mentioned before, among other things, containsinformation about a pilot project that the Effective Lawyer ClientCommunication Project is working on now. This pilot project is an effort totry to develop a standard methodology for getting better information about howclients experience the initial interview than I think we currently have.Lawyers, by and large, don't systematically measure client satisfaction orclient experience, even at the end of a representation. And they certainly don'tdo so at the beginning of a representation.One part of several pieces of methodology in this project is to have thissimple one page form2 filled out by clients immediately after the initial meetingwith the lawyer before they leave the office, when the experience is fresh intheir mind and when you can obtain almost a hundred percent response rate.2 A copy of the client questionnaire is contained infra Appendix A.20031EMORY LAW JOURNALThis is not just a client satisfaction form. The last question, "If I come back tothis office with a different need for legal help I would want the same lawyer tohelp me," is intended to be the closest thing to a general satisfaction measure.But we're looking at other things as well, for example:2) the lawyer said things I didn't understand.4) The lawyer did not understand what was most important to me.8) The lawyer asked confusing questions.11) 1 did not say everything I wanted to say.If the client agrees with any of these items, the client is right. One of thethings that happens with lawyers is that if clients are dissatisfied they tend tointerpret that dissatisfaction as caused by unrealistic expectations, especially ifthey are dissatisfied at the end of the matter. But if a client tells you "thelawyer said things I didn't understand," then the lawyer did say things theclient didn't understand. There's just no question about it. (By the way, you'llnotice that there is a flip side to the form, where the client has a free responsearea, so that if they said "the lawyer said things I didn't understand" they canindicate what they didn't understand here.)At the same time that the client is filling out this questionnaire, the attorneyis filling out this form, which is a kind of mirror image of the clientquestionnaire.3 For example, if the lawyer "strongly agrees" with item eight,then the lawyer is saying, "Well, in my opinion the client thought I askedconfusing questions." So one of the things these two forms do when readtogether is to give a pretty good measure of how accurate the lawyer was in hisor her estimation of how the client experienced the initial interview.Our hope with the project at this point is to develop a kind of standardinstrument that could be used in many different settings, which would give us away of really measuring how effective communication is at the initialinterview. Then once we have a way of measuring, we can actuallyexperiment with different ways of improving the interview. We also believethat simply by using these forms we focus attention on the initialcommunication between lawyer and client and how the client experiences it.The very process of having the client and the lawyer fill out the forms, andthen looking at how the client experienced the interview will, we hope, creategreater interest and attention on the part of lawyers as to this part of legalpractice.3 A copy of the lawyer's interview assessment form is contained infra Appendix B.[Vol. 52BUT WHAT IS THEIR STORY?Now I am going to conclude by jumping back to the movie. Tappan andMorgan Freeman's character didn't originally want Roger S. Baldwin, theywanted John Quincy Adams as their lawyer. Adams had by this point hadserved one term in the White House and then had done something no one elsehad ever done: after a term in the White House he went back home toMassachusetts, ran for the House of Representatives, was elected and had avery distinguished term of service. At this point in history, he is seventy-twoyears old. He declined to work on the case at the trial court level. After theyprevailed at the trial court level and the case was appealed to the U.S. SupremeCourt, Adams agreed to represent Cinque before the Supreme Court. But thisscene takes place when the case is still at the trial court level. Jodson (theMorgan Freeman character) goes to John Quincy Adams for advice.[Showing scene. The key dialogue is as follows:Adams: In the courtroom, whoever tells the best story, wins. What istheir story, by the way?Jodson: Sir?Adams: What is their story?Jodson: They're from West Africa.Adams: No, what is their story?(Jodson remains silent, looking puzzled.)Adams: Mr. Jodson, you're from where, originally?Jodson: Georgia.Adams: Is that who you are, a Georgian? Is that your story? No,you're an ex-slave who's devoted his life to the abolition of slaveryand overcome great obstacles and hardships along the way, I shouldimagine. That's your story, isn't it?(Jodson nods, slowly, with a slight smile.)Adams: You have proven you know what they are. They'reAfricans. Congratulations. What you don't know-and as far as Ican tell haven't bothered in the least to discover-is who they are.]4The title of my talk, But What Is Their Story?, comes from this scene. Iwant to leave this thought with you. At the beginning of the scene, JohnQuincy Adams talks about things in a fairly traditional way: about how the4 AMISTAD (Dreamworks SKG 1997).2003]1152 EMORY LAW JOURNAL [Vol. 52person who tells the best story wins in the courtroom. This line resonates withthe tendency to think about learning your client's story for strategic reasons,because the most effective thing is to tell the story well. But somethinginteresting happens, I think, by the end of the scene. When he asks Jodson,"What is your story?," he really is asking, "Who are you?" Not what are you,but who are you? And then he says to Jodson, you know what the Amistadprisoners are but you don't know who they are.I'd like to suggest as, what I hope is a recurring theme in this conference,that what clients want is more than just an outcome of a case, they want morethan just winning certain things. They want to be people. And, if they wanttheir stories heard by their lawyers and told by their lawyers, it's not just forachieving certain material outcomes. It's because by becoming involved in thelegal system many people choose to maintain or develop an identity and a goalin life. And that in the way in which we communicate with clients, if we donot learn their stories, in many ways we do not do at all what they want us todo.2003] BUT WHAT IS THEIR STORY? 1153APPENDIX ACONFIDENTIAL CLIENT SURVEY (CI-Surv8) Site Code _ Case codeLawyer code __(c) Effective Lawyer-Client Communication Project Website: http://law.gsu.edu/CommunicationThis survey will not be seen by anyone until this office decides whether torepresent you. If this office decides to represent you, a supervising lawyer will reviewyour answers. Your answers will not be shown to the lawyer who interviewed youunless you check the box at the end of this form.For questions 1-10, please indicate how much you agree or disagree with eachstatement about the lawyer who interviewed you. For each item, you may circleany number corresponding to the scale below.-4 -3 -2 -1 0 +1 +2 +3 +4strongly disagree not agree stronglydisagree sure agreeThe lawyer...1. Made me feel comfortable. -4 -3 -2 -1 0 +1 +2 +3 +42. Said things I did not understand. -4 -3 -2 -1 0 +1 +2 +3 +43. Treated me with respect. -4 -3 -2 -1 0 +1 +2 +3 +44. Did not understand what was most -4 -3 -2 -1 0 +1 +2 +3 +4important to me.5. Listened to me. -4 -3 -2 -1 0 +1 +2 +3 +46. Did not explain what he or she -4 -3 -2 -1 0 +1 +2 +3 +4would do next for me.7. Was interested in me as a person. -4 -3 -2 -1 0 +1 +2 +3 +48. Asked confusing questions. -4 -3 -2 -1 0 +1 +2 +3 +4EMORY LAW JOURNAL9. Was someone I could trust.10. Understood why I neededlegal help.-4 -3 -2 -1 0 +1 +2 +3 +4-4 -3 -2 -1 0 +1 +2 +3 +4For questions 11-13, please indicate how much you disagree or agree with eachstatement.11. I did not say everythingI wanted to say.12. I know what I need to do next.-4 -3 -2 -1-4 -3 -2 -113. If I came back to this office with -4 -3 -2 -1a different need for legal help, Iwould want the same lawyer tohelp me_ Show my answers to the lawyer who interviewed me.+1 +2 +3 +4+1 +2 +3 +4+1 +2 +3 +4We ask about the following information to help us improve the client survey. Pleaseskip any question if you do not want to provide the information.Age Last school degree: - Jr. High - High School __ 2 yr. College- 4 yr collegeGraduate School___White _ Black _ American Indian __ Hispanic - Asian Other:_Male __ Female Your first language: - English - Spanish Other: __NOW PLEASE TURN OVER THIS FORM FOR ADDITIONAL QUESTIONS.[Vol. 522003] BUT WHAT IS THEIR STORY? 1155APPENDIX BASSESSMENT OF CLIENT INTERVIEW (CI-Asmt8) Site Code __ Case codeLawyer code ____(c) Effective Lawyer-Client Communication Project Website: http://law.gsu.edu/CommunicationFor questions 1-10, please respond by imagining how the client would respond ifasked the question.We realize this is a difficult task and may involve some guessing on your part. For eachitem, you may circle any number corresponding to the scale below.-4 -3 -2-1 0 +1 +2 +3 +4The client...1. Felt comfortable. -42. Did not understand some things I said. -43. Felt treated with respect. -44. Felt as if I did not understand what was -4most important to him or her.5. Felt like I listened well. -46. Felt like I did not explain what -4I would do next for him or her.7. Felt like I was interested in him -4or her as a person.8. Thought I asked confusing questions. -49. Trusted me. -410. Thought I understood why he or she -4needed legal help.-3 -2 -1-3 -2 -1-3 -2 -1-3 -2 -1-3 -2 -1-3 -2 -1-3 -2 -1-2 -1-2 -1-2 -1+1 +2 +3+1 +2 +3+1 +2 +3+1 +2 +3+1 +2 +3+1 +2 +30 +1 +2 +3 +4+1 +2 +3+1 +2 +3+1 +2 +31156 EMORY LAW JOURNAL [Vol. 52For questions 11-17, express your own opinion, indicating how much you disagree oragree with each statement.The client....11. Did not say everything that he -4 -3 -2 -1 0 +1 +2 +3 +4or she wanted to say.12. Knows what he or she needs to -4 -3 -2 -1 0 +1 +2 +3 +4do next.13. Would want me to help him/her, -4 -3 -2 -1 0 +1 +2 +3 +4if the client came back to thisclinic with a different need forlegal help.14. Seemed confused. -4 -3 -2 -1 0 +1 +2 +3 +415. Told me the whole story. -4 -3 -2 -1 0 +1 +2 +3 +416. Had unrealistic goals. -4 -3 -2 -1 0 +1 +2 +3 +417. Did not tell me the truth. -4 -3 -2 -1 0 +1 +2 +3 +4We ask about the following information to help us improve the survey. Please skip anyquestion if you do not want to provide the information.Age __ White _ Black __ American Indian __ Hispanic - Asian Other:__ Male - Female Your first language: - English - Spanish Other: __ -

But What is Their Story?

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