What I Learned About Inclusion and Why It Matters

WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS By: Kathryn Ellis

Knoxville Family Justice Center

EVERY PERSON MATTERS

I have a confession . . . I struggle to talk about diversity. I find myself running conversations in my head before saying anything out loud because I don’t want to upset anyone. I don’t want to make anyone feel uncomfortable. I know I’m not alone in this feeling, but that doesn’t make it any easier. I stop myself before mentioning one of my Black/ Hispanic/gay friends. I think about whether what I’m about to say might be offensive to someone who is religious, or to someone who is not religious at all.

Despite struggling to talk about diversity, I do what I can to never turn away from the conversation.

In my first semester of graduate school, Dr. Susan Becker taught History 510: Introduction to Graduate Studies, which was a required course. The current course description says, “this class will teach you to be more self-conscious about the analytical choices you make while doing historical research, and also give you a chance to reflect on your decision to pursue a career in history.” The first assignment Dr. Becker gave us was to write about our frame of reference (FOR) and individual sphere of influence (SOI) and to explain how those each influenced the way we looked at history. The assignment forced us to look at where we came from, who and what influenced us, and generally why we looked at history the way we did. To identify our personal SOI, we had to consider where we came from – our family, our community, our education, our religion, etc. To identify our FOR, we had to consider the criteria we used to judge our experiences, our actions (and those of others), and our ideas.

As a 21-year-old who had never really analyzed why I thought the way I did and why I viewed others the way I did, the assignment was difficult, but also eye-opening. What I learned when I looked closely at what and who influenced me and shaped me, I realized that every person I interacted with mattered. I thought about Ms. Beech, my sixth-grade homeroom teacher, who at 6’2” didn’t hesitate to wear 3” wedge sandals, rocked her braids, and fully embraced her love of Jazzercise. She also introduced our class to the wonders of Earth, Wind, and Fire. I thought about Mr. Esformes (Jack) who I had for three years of government/ history in junior high and high school. Jack taught AP Government, but rather than limiting his class to “advanced” students he opened it up to any student who wanted the challenge of the advanced class and, thus, exposed the students in his class to different ways of thinking and different experiences.

My personal sphere of influence included educators, politicians, civil servants, and caretakers. It included adults who were black, white, Hispanic, Jewish, Protestant, Catholic, Democrat, and Republican. My frame of reference revolved around my constant need to create balance and to make sure everyone was treated fairly.

Thanks to Dr. Becker, I learned to understand how my own sphere of influence and frame of reference influenced my opinion of others and of events. Learning about myself enabled me to think about how others might hear my words and analyze my actions based on their own spheres of influence and frames of reference.

The conversation will never be easy, but it will always be worth having.

PRACTICE TIPS By: Michael W. Moyers

Bernstein, Stair & McAdams

PRESENTING YOUR CASE TO THE COURT: TIPS FROM THE BENCH

I like to tell the story from time to time about my first appearance in court. For many, this might be in Sessions or Juvenile, or perhaps as second chair to a senior attorney in a trial court setting. For me, it was in front of the Court of Appeals. Thirty minutes later, I left the courtroom humiliated, dejected, and wondering if I had made the proper career decision.

Years later I got to see things from the other side of the bench. Here are a few pointers I’ve picked up from 30+ years of practice on both sides of the bench.

Be Natural

I have had a number of young attorneys appear before me, and I’ve judged more than a few moot court competitions, and one thing I find very distracting is overly-rehearsed or scripted arguments. When an attorney appears to have their argument memorized, it comes off as wooden and unpersuasive. A natural, conversational style is much more engaging and persuasive than an overly stilted delivery.

But how to achieve this? In my ill-fated debut appearance before the Court of Appeals refenced above, I appeared with my entire argument written out in outline form, with each point having written out by it exactly what I was going to say. Because of this I was reliant more on that piece of paper, and the argument laid out precisely on it, than I was on my own understanding of the case. As a result, my affect was that of someone reading a script, rather than making an argument. Not surprisingly, it was not an effective approach.

Know Your Argument

This is related to the point above, and seems obvious, but know your argument. Don’t memorize, know. Practice your argument with an actual human being who asks questions, tries to poke holes in it, and otherwise tries to take you off your game. Again referencing that first disastrous court appearance of mine, my argument was laid out in points 1-10, and I was thoroughly prepared to argue my case in just that order. But because I did not KNOW my argument to the extent that I should have, I was totally flustered when one of the Justices skipped down to ask a question about point #7 and I experienced sudden and unrecoverable brain lock, stuttered, stammered and generally gave the appearance that I didn’t belong there. Don’t fall into this trap. Knowing your argument, not just the points you wish to make, will help you be more able to think on your feet and effectively answer a judge’s questions.

Pay Attention to What the Judge is Saying

I ran what some referred to as a “hot court.” I made it a point to read the briefs and arguments filed by attorneys and tried my very best to be prepared to ask questions during argument. When I did this, I usually had one of two motives for doing so: (a) because I was genuinely interested in the answers, or (2) because I was utilizing the Socratic method we all know and love to attempt to gently explain to the attorney I was questioning why he was about to lose. Listen to the judge’s questions carefully. If they seem open-ended, then he/she is probably attempting to elicit information needed to decide the case. If the questions seem more leading, then it may be the case that the judge has already determined the outcome. However, all is not lost. I did have attorneys change my mind even after I thought I had decided from the pleadings what I was going to do with a particular motion, so don’t give up even if it looks like the judge has made up his/her mind.

Pay Attention to What the Judge ISN’T Saying

Sometimes a judge will try to signal the attorneys what he/she is thinking without wishing to say so out loud. For me, some of the most difficult situations arose when one side was represented and the other was pro se. In one particular case, a pro se litigant testified on her own behalf literally for hours before finally finishing her statement. I tried in every manner I could to signal the opposing attorney that cross examination was not going to be needed in that case, but the poor (and very young) attorney didn’t get the hint. That sort of thing can make your judge very cross, so watch the judge’s body language. He or she might be trying to tell you something.

Don’t Talk Over the Judge

I was taught in trial practice classes never to interrupt a judge when he or she is talking, but my experience as a judge demonstrated to me that not everyone got the same lesson. As a judge I found it extremely irritating when an attorney interrupted me or cut me off. An angry judge does not help your client. When the judge starts talking, you should stop.

Address all Comments to the Court

Another simple rule of courtroom etiquette that can sometimes be forgotten in the heat of combat: do not direct argumentative comments to opposing counsel. All comments on the case should be directed to the Court. Arguments directed at opposing counsel are generally unpersuasive, unprofessional and distracting. Don’t get baited into such behavior.

“With all Due Respect…”

I couldn’t end this article without reference to one of my personal pet peeves: beginning a comment to the Court prefaced by the words “with all due respect.” There are two problems with this. First, as a Judge, one quickly becomes conditioned to the fact that what follows will be either mildly or grossly insulting. This is never a good or persuasive strategy. Second, when one takes the time to think about the import of this harmless-sounding phrase, the actual meaning is this: “I am making the following comment with all the respect to which you are due.” Note that this leaves open the possibility that the amount of respect the speaker believes the listener is due is zero. Again, not the best communication strategy ever. If you must preface a remark to the Court with a pre-apology, “respectfully” is a much better choice of words.